AND  STATION  KB, 
X  613  CLAY  STREET, 

Sa:t   !•', 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


PRACTICE, 

PLEADING  AND  FORMS 

IX  ACTIONS 
BOTH  LEGAL  AND  EQUITABLE. 

FORMS  IN  ACTIONS,  IN  SPECIAL  PROCEEDINGS,  IN  PRO- 
VISIONAL REMEDIES,  AND  OF  AFFIDAVITS, 
NOTICES, 


ESPECIALLY    ADAPTED    TO    THE    PRACTICE 

IN    THE     STATES    OF    CALIFORNIA, 
OREGON,   NEVADA  AND  THE 
'  TERRITORIES. 

AXD  APPLICABLE  ALSO 

TO    THE    PRACTICE    IN     NEW    YORK,    OHIO,    INDIANA,    IOWA, 

AND     OTHER    -STATES     WHICH     HAVE 

ADOPTED    A    CODE. 

BY    MORRIS    M.    ESTEE, 

COUNSELOR    AT    LAW. 

IN    THREE    VOLUMES. 
VOL.     II. 

SAN  FRANCISCO: 

H.    H.    BANCROFT    &    C  O  M'P  A  N  Y, 

1870. 


Entered,  according  to  Act  of  Congress,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  sixty-nine,  by 

MORRIS  M.  ESTEE, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States, 
for  the  District  of  California. 


F.  CLARKE,  Printer,  Presses  of  BACON  &  Co. 

411  Clay  Street.  536  Clay  Street. 

D.  HICKS  &  Co.,  Bookbinders, 
643  Clay  Street. 


CONTENTS. 
'  Vol.  II. 


FORMS   OF     COMPLAINTS. 

Subdivision  Fifth. 

FOR  DAMAGES  UPOX  WRONGS. 

Part  First — For  Injuries  to  the  Person. 

Chapter  I. 

FOR  ASSAULT  AND  BATTERY. 
FOBM  PAGE 

No.  324,  Common  Form, 1 

Notes  and  Authorities,  1 

"     325,              The  Same,  Short  Form, 4 

"     326,                         With  Special  Damages, 5 

"     327,  Against  Corporation,  for  Damages  Caused  by  an  Assault 

and  Forcible  Ejection  from  a  Car, 5 

Notes  and  Authorities, •. 6 

"     328,  Assault  and  False  Imprisonment,  with  notes, 8 

' '    329,              Fuller  Form,   9 

Chapter  n. 

FOR  FALSE  IMPRISONMENT. 
FORM  PAGE 

No.  330,  Common  Form, 10 

Notes  and  Authorities, 10 


G675C8 


IV  CONTENTS. 

FORM        For  False  Imprisonment.  PAGE 

No.  331,  The  Same,  Another  Form,   12 

Special  Damages,    13 


Chapt3r  HI. 

LIBEL  AXD  SLAXDER. 

FORM  PAGE 

No.  332,  For  Libel,  The  Words  being  Libelous  in  Themselves,  13 

Notes  and  Authorities,  14 

"     333,              The  "Words  not  being  Libelous  in  Themselves, 22 

Notes  and  Authorities, 22 

"     334,                         By  an  Attorney  at  Law, 27 

"     335,                          By  a  Physician, 28 

"     326,                          Charge  of  Dishonesty,  etc.,  in  Business, 29 

By  Corporation, 29 

"     337,  For  Charge  of  Crime,  Words  not  Libelous  on  their 

Face, .' 30 

"     338,  Accusing  Plaintiff  of  Perjury  in  his  Answer  to  a 

Complaint,   30 

"     339,  For  Composing  a  Libel  not  Directly  Accusing  the 

Plaintiff  of  Perjury, 31 

"     340,  For  a  Libel  not  Directly  Accusing  the  Plaintiff  of  Larceny,  ....  32 

"     341,  For  Libel  by  Signs,  33 

"     342,  For  Slander,  The  Words  being  Actionable  in  Themselves, £3 

Notes  and  Authorities,  o4 

"     343,              Words  Spoken  in  a  Foreign  Language, 40 

Notes, 40 

' '     344,              The  Words  not  being  Actionable  in  Themselves, 41 

Notes  and  Authorities, .  41 

"     345,                          Kespecting  Plaintiffs  Trade, 43 

Notes  and  Authorities, '  . .  43 

"     346,                         Charging  a  Criminal  Offense, 45 

Actionable  Language, 46 

"     347,  The  Same — Several  Causes  of  Action, 

"     348,  Slander — For  words  Directly  Charging  Perjury, 46 

Notes, 48 

"     349,              The  Same,  Containing  Special  Inducements, •   .  4i» 


CONTENTS. 


Chaptsr  IV. 

MALICIOUS  PROSECUTION. 

FOKM  PAGE 

No.  350,  Common  Form 50 

Notes  and  Authorities,  51 

"     351,              The  Same,  Fuller  Form, 56 

' '     352,                         For  Procuring  Plaintiff  to  be  Indicted,  57 

'•     353,  The  Same — For  Obtaining  Indictment  on  which  a 

Prosequi  was  afterwards  Entered,  ....  58 

"     354,                          Where  Judgment  of  Acquittal  was  Rendered,    . . « . .  61 

Note, 62 

"    355,                          For  Malicious  Arrest  in  a  Civil  Action,  >>'2 

Notes  and  Authorities, 63 


Chapter  V. 

FOR  PERSONAL  IXJURY  CAUSED  BY  NEGLIGENCE. 

FOBM  PA OK 

No.  356,  For  Injuries  Caused  by  Collision  of  Vehicle  Driven  by  Servant,  65 

Notes  and  Authorities,   6(> 

"     357,  Against  Common  Carriers,  for  Overturning  Stage  Coach, <i7 

Notes  and  Authorities, '''s 

••     358,              Against  a  Railroad,  for  Injuries  by  Collision,  70 

Notes  and  Authorities, 71 

"     359,                         The  Same— By  Car  Running  off  Track, 7'2 

"     360,  For  Injuries  Caused  by  Negligence  on  a  Railroad,  in 

Omitting  to  Give  Signal, 73 

"     361,                         By  a  Steamboat  Explosion, 75 

Notes  and  Authorities, 76 

"     362,  For  Injuries  to  Engineer  of  a  Railroad  Company,  Caused  by 

a  Collision, 77 

Notes  and  Authorities, 78 

"     363,                        Said  Company  Having  Used  a  Condemned  Locomo- 
tive,      80 

Notes  and  Authorities, 81 

"     364,              By  Executor-  or  Administrator,  against  a  Railroad  Com- 
pany, for  Injuries  Causing  Death, 83 

Notes  and  Authorities, • 84 


VI  CONSENTS. 

FOKM        For  Personal  Injury.  PAGE 

No.  365,  Against  a  Municipal  Corporation,  for  Injuries  Caused  by 

Leaving  the  Street  in  an  Insecure  State, 87 

Notes  and  Authorities, 88 

"  366,  For  Injuries  Caused  by  Rubbish  in  the  Street, 
whereby  Plaintiff  was  Thrown  from  his  Car- 
riage,  91 

"     367,  For  Injuries  Caused  by  Leaving  a  Hatchway  Open, 92 

"     368,              Another  Form, 93 

"     369,  For  Injuries  Caused  by  Vicious  Dog, 94 

Notes  and  Authorities, 94 

"     370,  Against  Physician,  for  Maltreatment, 96 

"     371,  Against  Surgeon,  for  Malpractice,  : 97 

Chapter  VI. 

FOR  VIOLATION  OF  PERSONAL  RIGHTS. 

FORM  PAGE 

No.  372,  Against  Officers  of  an  Election,  for  Refusing  Plaintiff's  Vote,  ...     98* 

"     373,  For  Criminal  Conversation, 99 

Notes, 100 

"  374,  For  Enticing  Away  Plaintiff's  Wife, 100 

Note • '. . .  101 

"  375,  For  Debauching  a  Daughter, 101 

Notes  and  Authorities,  102 

"  376,  For  Seduction  of  Plaintiff's  Daughter  or  Servant, 104 

"  377,  For  Refusal  to  Permit  Passengers  to  Ride  in  a  Car, 104 

Notes  and  Authorities,  106 


CONTENTS.  Vll 

• 

FORMS    OF    COMPLAINTS. 

Subdivision  Fifth. 

FOR  DAMAGES  UPON  WRONGS. 

Part  Second — For  Injuries  to  Property. 

Chapter  I. 

BAILEES. 
FOBM  PAGK 

No.  378,  Against  a  Bailee — Common  Form, 109 

Notes  and  Authorities, 109 

"     379,  For  Injury  to  Pledge 112 

"     380,  For  Loss  of  Pledge,  113 

"    381,  For  not  Taking  Care  of  and  Returning  Goods, 114 

"     382,  Against  Hirer  of  Chattels,  for  not  Taking  Proper  Care  of  Them,  115 
"     383,  For  Injury  to  Horse,  Resulting  from  Immoderate  Driving,  115 

"     384,  For    Driving   Horse   on  a  Different  Journey  from   that 

Agreed 116 

"     385,  Against  Innkeeper,  for  Loss  of  Baggage, 117 

Notes  and  Authorities, 117 

'•     386,  For  Loss  of  Pocket  Book, , 118 

"     387,  Against  Warehouse'man,  for  Injury  and  Neglect  to  Obey  Instruc- 

•    tions,    119 

Notes  and  Authorities, 120 

"     388,  For  Refusal  to  Deliver  Goods,  121 

Chapter  n. 

COMMON  CARRIERS. 
FORM  PAGE 

No.  389,  Against  Common  Gamer,  for  Breach  of  Duty, 122 

Notes  and  Authorities, 123 

"     390,              For  Loss  of  Goods,  . .  JL 127 

Notes  and  Authorities, 128 

"     391,              For  Loss  of  Baggage, 129 

Notes  and  Authorities, 129 


Vlll  CONTENTS. 

FORM  PAGE 

• 

No.  392,  Against  Carrier  by  Water,  for  Negligence  in  Loading  Cargo,  ....  131 

~  "     393,              For  not  Eegardiug  Notice  to  Keep  Dry, 132 

"     394,              For  Loss  in  Unloading, 133 

For  Mixing  Goods, .- 134 

"     395,              For  Failure  to  Deliver  at  Time  Agreed, 134 

Notes  and  Authorities, 135 

"    398,              On  Special  Contract  for  Loss  of  Goods,  135 

Notes  and  Authorities,  136 


Chapter  III. 

AGAINST  AGENTS,  EMPLOYEES,  AND  OTHERS,  FOR  NEGLIGENCE. 

FOBM  PAGE 

No.  397,  Against  Agents,  for  not  Using  Diligence  to  Sell  Goods, 138 

Notes  and  Authorities, 139 

"  398,  For  Carelessly  Selling  to  an  Insolvent,  .• 140 

"  399,  t  For  Selling  for  a  Worthless  Bill, 140 

"  400,  Against  an  Auctioneer,  for  Selling  below  the  Owner's  Limit,  . . .  141 

"  401,  For  Selling  on  Credit,  against  Orders,  142 

' '  402,  Against  Auctioneer  or  Agent,  for  not  Accounting, 142 

' '  403,  Against  Forwarding  Agent,  for  not  Forwarding  Goods  as  Agreed,  143 

"  404,  Against  an  Attorney,  for  Negligence  in  the  prosecution  of  a  Suit,  144 

•  Notes  and  Authorities, 145 

"  405,  For  Negligent  Defense,  146 

"  406,  For  Negligence  in  Examining  Title, 147 

' '  407,  Against  a  Contractor,  for  Leaving  the  Street  in  an  Insecure 

State,  whereby  Plaintiff's  Horse  was  Injiired,  148 

' '  408,  Against  Municipal  Corporation,  for  Damage  done  by  Mob  or  Riot,  149 

Notes  and  Authorities,  150 

"  409,  Against  a  Railroad,  for  Killing  Cattle, 151 

Notes  and  Authorities, 151 

"  410,  For  Kindling  a  Fire  on  Defendant's  Land,  whereby  Plaintiffs 

Property  was  Burned,  155 

Against  Railroad  Companies, 155 

"  411,  For  Chasing  Plaintiff's  Cattle,  156 

"  412,  For  Keeping  Dog  Accustomed  to  Bite  Animals, 156 

Notes  and  Authorities, 157 


CONTENTS.  IX 

FORM  PAGK 

No.  413,  For  Shooting  Plaintiff's  Dog, 158 

'•     414,  For  Untying  Plaintiff's  Boat,  by  Reason  of  which  it  was  Carried 

by  the  Current  against  a  Bridge,  and  Injured, 158 

"    415,  For  Flowing  Water  from.  Roof  on  Plaintiff's  Premises, 159 

"    416,  For  Negligence  of  Mill  Owners,  whereby  Plaintiff's  Laud  Mas 

Overflowed, !  160 

Notes  and  Authorities, 161 

"    417,  For  Undermining  Plaintiff's  Land, 162 

"    418,  For  Undermining  Plaintiff's  Building, 163 

"    419,  For  not  Using  Due  Care  and  Skill  in  Repairing, 164 

"     420,  Against  Watchmaker',  for  not  Returning  Watch,  104 

Chapter  IV. 

SLAXDER  OF  TITLE. 
•FORM  PAGE 

No.  421,  Common  rl^nn,  165 

Notes  iSyd  Authorities, 166 

» 

Chapter  V. 

TRESPASS. 

FORM  ,  PAGE 

No.  422,  For  Malicious  Injury,  Claiming  Increased  Damages  under  Statute,  168 

Notes  and  Authorities, 168 

"    423,              For  Damages  for  Injuring  Trees, 174 

Notes  and  Authorities, 174 

' '    424,              The  Same — For  Cutting  and  Converting  Timber, 175 

Notes  and  Authorities, 175 

"     425,              The  Same— For  Treading  down  Grain, 178 

Notes  and  Authorities, 178 

"    426,              For  Removal  of  Fence,  . .    179 

"     427,  For  Trespass  on  Chattels, 180 

Averment  of  Special  Damage, 180 

"     428,              For  Malicious  Injury  to  Property, 180 

"    429,              For  Entering  and  Injuring  a  House  and  Goods  Therein, ..  181 

Notes  and  Authorities, ^ 181 


X  CONTENTS. 

FORMS  OF  COMPLAINTS. 

Subdivision-  Sixth. 
FOR  THE  POSSESSION  OF  SPECIFIC  PROPERTY. 

Chapter  I. 

PERSONAL  PROPERTY. 
FOEM  PAGE 

No.  430,  For  Conversion,  Common  Form, 183 

Notes  and  Authorities, 183 

"    431,  The  Same,  Another  Form, 194 

"    432,              By  Seller,  against  Fraudulent  Buyer,  for  Conversion,  ..   194 
Allegation  against  Fraudulent  Buyer  and  his  Trans- 
feree,       S 195 

' '    433,  For  Goods  Wrongfully  taken  from  Possession  of  Plaintiff's 

Assignor,  195 

"    434,  For  Goods  Wrongfully  taken  from  Possession  of  Bailee,  ..   196 

"    435,  For  Conversion  of  Promissory  Note, 197 

Notes  and  Authorities, 197 

"     436,  By  Assignee  after  Conversion, : 198 

Notes  and  Authorities,' 198 

"    437,  Against  one  in  Possession  Innocently, 200 

"    438,  By  Administrator,  after  Conversion, 201 

Notes  and  Authorities, 201 

"     439,  For  Conversion  of  a  Bond, 203 

"    440,  Claim  and  Delivery, 204 

Notes  and  Authorities, 205 

Chapter  II. 

FOR  REAL  PROPERTY. 
FOKM  PAGE 

No.  441,  Ejectment,  Alleging  Title  in  Fee  Simple 211 

Notes  and  Authorities, 212 

"    442,  Where  Damages,  Kents,  and  Profits  are  Claimed, 234 


CONTENTS.  XI 

FORM  PAGE 

No.  443,  Ejectment— Alleging  Title  by  Descent,   235 

Allegation  Setting  forth  Title  by  Devise,  Notes,  . .  235 

"    444,                         Alleging  Title  by  Possession, 236 

Notes  and  Authorities, 236 

"    445.                         The  Same — Alleging  Prior  Possession,  243 

Notes  and  Authorities, 243 

"    446,                         By  the  Tenant, 246 

Notes  and  Authorities, 246 

"    447,              Form  under  the  Oregon  Code, 247 

"     448,              Form  under  the  New  York  Code — By  Widow  for  Dower,  .  248 


FORMS    OF    COMPLAINTS. 

Subdivision  Seventh. 
IN  ACTIONS  CONCERNING  REAL  PROPERTY. 

Chapter  I. 

FORECLOSURE  OF  MORTGAGES  AND  LIEXS. 
FOKM  PAGE 

No.  449,  Foreclosure  of  Mortgage,  Common  Form,  250 

Allegation  of  Insurance  by  Plaintiff,  Notes  and  Authorities,  253 

"    450,  The  Same,  Another  Form, 265 

Notes  and  Authorities, 266 

"    451,  Assignee  'of  Mortgagee,  Guaranteeing  Payment,  against 

Mortgagor,  Grantee  Assuming  Payment  and  Junior 

Incumbranc         268 

Notes  and  Aiithorities, 270 

"    452,  For  [Redemption  of  Heal     roperty, 270 

Notes      d  Authorities, 271 

"    453,  By  a  Lessee,     272 

"    454,  Mechanics'  Liens — Common  Form,   273 

Notes  and  Authorities,   275 

"     455,  By  a  Contractor,  for  Building  Materials, 278 


Xll  CONTENTS. 

FORM        For  Foreclosure  of  Mortgages  and  Liens.  PACK 

No.  456,  By  a  Sub-Contractor,  against  Owner  and  Contractor,  280 

Notes  and  Authorities,  282 

"     457,  Vendor  against  Purchaser,  to  Enforce  Lien, 282 

"    458,              Against  Purchaser,   and    his    Grantees,    and  Judgment- 
Creditors,  to  Enforce  Lien, :   283 

Notes  and  Authorities, 284 

"     459,  To  Foreclose  Chattel  Mortgage,   286 

Notes  and  Authorities, 287 


Chapter  II. 

COMPLAINTS  FOR  NUISANCES, 

FOEM  PAGE 

No.  460,  For  Erecting  a  Nuisance, 289 

"    461,  For  Abatement  of  a  Nuisance,  290 

Notes  and  Authorities, 290 

"     462,  For  Continuance  of  a  Nuisance, •.  . . .  299 

Allegation  where  Land  has  been  Transferred, 299 

"     463,  For  Obstructing  a  Way, .' 300 

Notes  and  Authorities, 301 

"    464,  For  Diverting  Water  from  a  Quartz  Mill, ! . . , .  303 

Notes  and  Authorities, 303 

Allegation  of  Eight,  by  Prior  Appropriation, 304 

"    465,  Diverting  Water  from. a  Flouring  Mill, 309 

Notes, 310 

"  •  466,  The  Same— Diverting  Water  from  a  Saw  Mill, 310 

•'    467,  For  Erecting  a  Dam  Above  Plaintiff's  Dam, 311 

Notes  and  Authorities, 312 

"    468,  For  Backing  up  Water  on  Plaintiffs  Quartz  Mill, 313 

Notes  and  Authorities, • . , 314 


Chapter  HI. 

PARTITION. 
FOBM  PAGE 

No.  469,  For  Partition  of  Real  Property, 318 

Notes  and  Authorities 319 

Allegation,  Premises  Subject  to  Judgment  Lien, 320 


CONTENTS.  Xlll 

FOKM        For  Partition.  PAGE 

No.  470,  By  a  Tenant  in  Common,  or  Joint  Tenant,  Against  Co- 

Tenant  who  has  Wnsted  the  Estate,  .  .  329 

t 

Chapter  IV. 

QUIETING  TITLE. 
FORM  PAGE 

No.  471,  For  Determination  of  Claims  to  Real  Property, 330 

Notes  and  Authorities, 331 

"     742,              The  Same,  Another  Form,    341 

"    473,              The  Same,  Another  Form,    .  . '. 342 

"     474,              To  Eemove  a  Mortgage  which  is  a  Cloud  upon  Title,  ....  346 

Notes  and  Authorities, 346 


• 


Chapter  V. 


COMPLAINTS  FOR  WASTE. 
FORM  PAGE 

No.  475,  By  Lessor — "Waste  by  Lessee, 347 

Notes  and  Authorities, 348 

"    476,  By  Purchaser  at  Sheriff's  Sale  —  For  Waste  Intermediate  the 

Sale  and  Delivery  of  Possession,    351 

"     477,  The  Same,  By  Redemptioner, % 352 

"    478,  By  Reversioner — Forfeiture  and  Eviction  on  Acount  of  Waste,  352 
"    479,  The  Same,  By  a  Devisee, 353 


XIV  CONTENTS. 


FORMS    OF  'COMPLAINTS. 

Subdivision  Eighth. 
FOR  SPECIFIC  RELIEF. 

Chapter  I. 

CREDITORS'  SUITS. 

FORM  PAGE 

No.  480,  Commencement  of  Complaint — One  Suing  for  All, 355 

Notes  and  Authorities, 355 

• 

"    481,  The  Same,  Where  a  Particular  Class  only  are  Concerned,  357 

',!    482,  Creditor's  Action  on  a  Judgment  of  a  Court  of  Kecord,  to  Set 

Aside  Fraudulent  Assignment 358 

Allegation  where  Debtor  in  the  Judgment  is  not  Defend- 
ant, because  of  Insolvency  and  Absence, 359 

Because  merely  a  Surety, 359 

Notes  and  Authorities, 359 

"     483r  Upon  a  Justice's  Judgment, 370 

Allegation  where  Debtor's  Residence  is  Unknown,  371 
"    484,  Against  Debtor,  to  Reach  Demands  Due  Him  from  Third 

Parties, 371 

"     485,  Against  Debtor  and  His  Trustee,  to  Reach  the  Trust  Fund 

or  its  Income, % 374 

Notes  and  Authorities, 374 

"     486,  Against  a  Debtor,  Seeking  to  Set  Aside,  as  Fraudulent, 

Transfer  of  his  Assets  to  a  Third  Person  for  Note," 

the  Note  Assigned  for  Benefit  of  Creditors, 376 

Allegation  where  Value  of  Assets  is  not  Suffi- 
cient to  Satisfy  the  Debt, 378 

"    487,  Against  Heir,  for  Deb^of  Creditors 379 

Allegation  where  Heir  or  Devisee  has  Aliened  the 

Land,   380 

Notes  and  Authorities, 380 

-"     488,  Against  Next  of  Kin,  for  Debt  of  Ancestor, 381 

"    489,  Against  Legatee,  for  Debt  of  Decedent, 382 


CONTENTS.  XV 


Chapter  II. 

FOR  DISSOLUTION  OF  PARTNERSHIP. 
FOBM  PAGE 

No.  490,  Common  Form,   383 

Notes  and  Authorities, 384 

"    491,  On  the  Ground  of  Assignment  by 'Partner, 389 

Notes, 389 

"    492,  Upon  Notice  of  Expiration  of  Term  of  Co-Partnership,    ...  390 

Notes  and  Authorities, 390 

"     493,  On  the  Ground  of  Bankruptcy  of  Partner 392 

Effect  of  Bankruptcy, 392 

"     494,  On  the  Ground  of  Misappropriation  of  Funds,  393 

"    495,  By  Administrator,  for  Dissolution  on  the  Ground  of  Death, 394 

Notes  and  Authorities, 396 

•    "    496,  By  a  Creditor,  to  Dissolve  a  Corporation, 397 


Chapter  in. 

DIVORCE. 
FOBM  PAGE 

No.  497,  On  the  Ground  of  Adultery,   399 

Notes  and  Authorities, 401 

1  Allegation  of  Adulterous  Intercourse,    402 

Where  Name  is  Unknown,    402 

"    498,  On  the  Ground  of  Desertion. 406 

Notes  and  Authoritie^ 407 

"    499,  On  the  Ground  of  Conviction  for  Crime,    407 

"     500,  On  the  Ground  of  Extreme  Cruelty, 408 

Notes  and  Authorities, 408 

"     501,  On  the  Ground  of  Fraud, 412 

Notes  and  Authorities, 412 

"     502,  On  the  Ground  of  Habitual  Drunkenness, 413 

"     503,  On  the  Ground  of  Lunacy, 414 

"     504,  On  the  Ground  of  Willful  Neglect, 415 

Notes  and  Authorities, 415 

' '     505,  On  the  Ground  of  Physical  Incapacity, 416 


XVI  CONTENTS. 


Chapter  IV. 
FRAUD. 

FOBM  PAGE 

No.  506,  For  Eescission  of  Contract  on  the  Ground  of  Fraud,  ...........  417 

Notes  and  Authorities,  ..........................  418 

Allegation  of  Demand  for  Return,  ......................  427 

"     507,  The  Same—  on  the  Ground  of  Mistake,  .......................  428 

Notes  and  Authorities,  .............    ............  429 

"     508,  To  Reform  a  Conveyance,  for  Mistake  in  the  Boundary,  ..  430 

Notes  and  Authorities,  ..........................  431 

To  Correct  an  Account  Stated,  .........................  432 

For  Procuring  Property  by  Fraud,  .....................  434 

Notes  and  Authorities,  ..........................  434 

511,  Against  a  Fraudulent  Purchaser  and  his  Transferee,  ............  435 

512,  For  Fraudulently  Procuring  Credit  to  be  Given  to  Another,  .....  437 

Notes  and  Authorities,  ................................  437 

513,  Against  Directors  of  a  Corporation,  for  Damages  Caused  by  Their 

Misrepresentations,   ..................................   439 

Notes  and  Authorities,  ..........................  441 

514,  Against  Seller,  for  Fraudulently  Representing  Chattels  to  be  his 

Property,    ....................................  :  ......   442 

Notes  and  Authoiities,  ..........................  443 

515,  For  Fraudulently  Delivering  Smaller  Quantity  than  Agreed 

for,    ..........................    ................  445 

516,  To  Set  Aside  a   Judgment  Fraudulently  Obtained,    ..........  .-  .  446 

Notes  and.  Authorities,  ................................  449 


Chapter  V. 

INJUNCTION. 

FOEM  PAGE 

No.  517,  For  Restoration  of  Personal  Property  Threatened  with  Destruc- 

tion, and  for  Injunction,  .............................  452 

"     518,  For  an  Injunction  Restraining  Waste  and  Injury,   .............  453 

Notes  and  Authorities,    ....................    ...  453 

"     519,  The  Same  —  For  Injunction  and  Damages.  ..............  458 

Notes  and  Atithorities,  ..........................  459 


CONTENTS.  XV11 

FORM  PAGE 

No.  520,  To  Kestrain  the  Use  of  Plaintiffs  Trade  Mark, 460 

Notes  and  Authorities, 465 

Allegation  in  Case  of  a  Periodical  Publication,    466 

"     521,  Against  Purchaser  of  Goods,  and  for  Injunction  Kestraining 

Sale, 469 

"     522,  To  Eestrain  Negotiation  of  Bill  or  Note,   470 

"    523,  Interpleader,   471 

• 

Chapter  VI. 

SPECIFIC  PERFORMANCE. 
FOBM  PAGE 

No.  524,  Purchaser  against  Vendor, 472 

"     525,  The  Same— Short  Form, 475 

Notes  and  Authorities, 476 

"     526,  The  Same— "Where  Money  Lay  Idle, 489 

Allegation  where  there  is  a  Deficiency  of  Land,  . .  490 
Allegation  where  there  is  an  Outstanding  Incum- 

brance, .' 490 

' '     527,  On  an  Exchange  of  Property, 491 

Notes  and  Authorities, 492 

' '     528,  Vendor  against  Purchaser, 492 

Notes  and  Authorities,  493 


Chapter  VII. 


USURPATION  OF  OFFICE. 
FOBM  PAGE 

No.  529,  By  the  Attorney-General,  against  an  Elective  Officer, 496 

Notes  and  Authorities, 497 

"     530,  The   Same — Against  an  Appointed  Officer,  for  Holding 

over,   • 504 

"     531,  To  Dissolve  Corporation  for  Exercising  Franchise  not  Conferred 

by  Law,  505 

Notes  and  Authorities,  506 


XV111  CONTENTS. 

FORMS    OF    COMPLAINTS. 

Subdivision  Ninth. 
IN  STATUTORY  ACTIONS. 

Chapter  I. 

FOR  FORCIBLE  ENTRY  AND  UNLAWFUL  DETAINER. 

FOKM  PAGE 

No.  532,  For  Forcible  Entry  and  Unlawful  Detainer,  506 

Notes  and  Authorities, 507 

"     533,  For  Forcible  Entry  and  Forcible  Detainer,  520 

Notes,    520 

"     534,  For  Unlawful  Entry  and  Forcible  Detainer,  521 

Notes  and  Authorities, 522 

"     535,  Holding  Over  after  Rent  Due, 525 

"     536,  Holding  Over  after  Expiration  of  Term, 527 

Notes  and  Authorities, 528 

Chapter  II. 

FOR  STRZET  ASSESSMENT. 
FOKM  PAGE 

No.  537,  Common  Form, 534 

Notes  and  Authorities, 542 

Chapter  HI. 

TAXES  AND  TAXATION. 
FOKM  PAGE 

No.  538,  State  and  County  Tax — Known  Owners, 564 

"    539,  Unknown  Owners, 566 

Notes  and  Authorities, 568 

"     540,  Tax  on  Personal  Property,  Amount  Less  than  Three  Hundred 

Dollars,   • I 591 

"     541,  For  Non-Payment  of  License 592 


CONTENTS.  XIX 


PART   FOURTH. 

PLEADINGS    OF    DEFENDANT. 

Chapter  I. 
DEMURRERS. 

PAGE 

In  General, 594 

Mode  of  Taking  Objection, 598 

What  a  Demurrer  Admits, 601 

When  a  Demurrer  Lies, 602 

When  Demurrer  will  not  Lie, 604 

Objection  to  Prayer  For  Belief, 608 

General  Demurrer,   610 

Special  Demurrers, .  611 

Causes  or  Grounds  for  Demurrer,   613 

Chapter  n. 

FORMS  OF  DEMURRERS. 
FOEM  PAGE 

No.  542,  Demurrer  to  Some  of  the  Alleged  Causes  of  Action, 615 

' '     543,  On  the  Ground  of  Want  of  Jurisdiction, 615 

Notes  and  Authorities, 616 

"    544,  On  the  Ground  of  Want  of  Capacity  to  Sue,   617 

.  Notes  and  Authorities, 617 

"    545,  On  the  Ground  of  Another  Action  Pending, 619 

Notes  and  Authorities, 620 

"    546,  On  the  Ground  of  Defect  of  Parties, 621 

Notes  and  Authorities,    621 

"     547.  On  the  Ground  of  Misjoinder  of  Parties,   624 

Notes  and  Authorities, 624 

"     548,  On  the  Ground  of  Misjoinder  of  Causes  of  Action,   626 

Notes  and  Authorities,   627 

"    549,  On  the  Ground  that  the  Complaint  does  not  State  Facts 

Sufficient  to  Constitute  a  Cause  of  Action,   631 

Notes  and  Authorities, , .  631 


XX  CONTENTS. 

FORM  PAGE 

No.  550,  Demurrer  on  the  Ground  of  Ambiguity,    640 

Notes  and  Authorities,  640 

"    551,  Several  Grounds  of  Demurrer. 641 


PART  FIFTH. 

DEFENSES    TO    THE    ACTION. 

Chapter  I. 

ANSWERS. 

PAGE 

In  General, 643 

Defenses, 647 

Pleas, 649 

What  Answer  Should  Contain, 651 

Denials  in  the  Answer,  652 

General  Denial, 655 

Literal  and  Conjunctive  Denials, 656 

Denial  of  Legal  Conclusions, 660 

Sham,  Irrelevant,  and  Frivolous  Answers, 662 

Admissions  in  the  Answer,  667 

Answer  not  Evidence,  668 

Verification  of  Answer,  669 

New  Matter,  , 670 

What  must  be  Specially  Pleaded,  673 

Matter  in  Avoidance, 674 

Pleas  in  Abatement, 675 

Pleas  in  Bar, 677 

Effect  of  Special  Pleas, 679 

Chapter  H. 
FORMS  OF  DENIALS  IN  ANSWER. 

FOKM  PAGE 

No.  552,  General  Denial— Positive, 681 

Notes  and  Authorities, 681 


CONTENTS.  XXI 

FORM  PAGE 

No.  553,  General  Denial  as  to  Part  of  a  Pleading, 684 

Notes  and  Authorities, 684 

"  554,  General  Denial  of  one  of  Several  Causes  of  Action, 684 

"  555,  Denial  by  Articles, 685 

Notes  and  Authorities, m. 685 

"  556,  Denial  of  the  Agreement  Alleged,  686 

"  557,  Another  Form, ' 686 

"  558,  Another  Form, 687 

"  559,  Controverting  Conditions  Precedent, 687 

Notes  and  Authorities, 687 

"  560,  Denial  of  Deed, 688 

Notes  and  Authorities, 688 

"  561,  Denial  of  Conditional  Delivery, 688 

"  562,  Denial  of  Demand,  . . . .' 689 

Notes  and  Authorities, 689 

"  563,  Denial  of  Falsity, 689 

"  564,  Denial  of  Fraud,  690 

Note, 690 

"  565,  Another  Form, 690 

"  566,  Special  Denial  of  Part  Performance,  691 

"  567,  Denial  of  Partnership, 691 

"  568,  Of  Representations, .' 691 

"  569,  Of  Sale, 692 

"  570,  Of  a  Trust, '. 692 

"  571,  Another  Form,  692 

"  572,  Denial  on  Information  and  Belief, 693 

Notes  and  Authorities,  693 

"  573,  Denial  of  Knowlege  Sufficient  to  Form  a  Belief, 695 

Notes  and  Authorities, 695 

"  574,  Another  Form, 698 

Notes  and  Authorities, 698 

"  575,  Denial  of  Knowlege,  Explaining  Cause  of  Ignorance, 699 

Note, 699 

Chapter  in. 

FORMS  OF  SPECIAL  PLEAS. 

FOEM  PAGE 

No.  576,  Accord  and  Satisfaction, 700 

Notes  and  Authorities, 700 


XX11  CONTENTS. 

FORM  PAGE 

No.  577,  Alteration  of  Contract, : .  701 

"     578,  Another  Action  Pending, 702 

Notes  and  Authorities,  702 

"     579,  Arbitration  and  Award, 704 

Notes  and  Authorities,  705 

"     580,  Bankruptcy 705 

Notes  and  Authorities,  706 

"     581,  The  Same— By  Composition  Deed, 708 

Notes  and  Authorities, 708 

'     582,  Compromise,   709 

Note, 709 

•'     583,  Credit  Unexpired,  710 

Notes  and  Authorities, 710 

"     584,  Death  of  Defendant  Before  Suit,  .  1 711 

Notes  and  Authorities, ; 711 

"     585,  Duress, 714 

"     586,  Former  Judgment,   '. 715 

Notes  and  Authorities, 715 

"     587,  Fraud,    720 

Notes  and  Authorities, 720 

"     588,  Infancy  of  Plaintiff, 721 

Notes  and  Authorities, 721 

"     589,  Infancy  of  Defendant, 722 

Note, : 722 

"     590,  Marriage  of  Plaintiff, : 722 

.    >     Notes  and  Authorities, 723 

"    591,  Marriage  of  Defendant 723 

Notes  and  Authorities, 723 

"    592,  The  Same — After  the  Contract  and  Before  the  Action,  . . .  724 

Notes  and  Authorities,  724 

"     593,  Misjoincler  of  Parties, 725 

Notes  and  Authorities, 725 

"    594,  Misnomer, 726 

Notes  and  Authorities, 726 

"    595,  Mistake, 727 

: '     596,  Non-Joinder  of  a  Necessary  Party  Plaintiff, 727 

Note, 727 

"     597,  Of  Owners  in  Actions  Between  Tenants  in  Common, 728 

"     598,  Of  a  Co-Administrator, 728 

Notes  and  Authorities, 728 


CONTENTS.  XX111 

FORM  PAGE 

No.  599,  Of  One  who  was  a  Party  to  the  Contract, 730 

"    600,  Payment, 730 

Notes  and  Authorities, : 730 

"    601,  Payment  by  Note, 733 

Note 733 

"    602,  Payment  by  Bill  Accepted  in  Discharge,  which  Plaintiff  has  Lost,  734 

Notes  and  Authorities, 734 

"    603,  Payment  in  Services, 735 

"    604,  Release, 735 

Notes  and  Authorities, 735 

"    605,  Statute  of  Frauds, 737 

Notes  and  Authorities, 737 

"    606,  Statute  of  Frauds— Another  Form 739 

Note, 739 

Agreement  not  to  be  Performed  Within  a  Year, ....  739 

"     607,  Another  Form 739 

"     608,  Agreement  in  Consideration  of  Marriage, 740 

"    609,   Ultra  Vires  Corporation,  -. 740 

"     610,  Statute  of  Limitations, 741 

Notes  and  Authorities, 741 

"     611,  Tender, 746 

Notes  and  Authorities, ' 746 

"    612,  Payment  as  to  Part,  and  Tender  as  to  Residue, 747 

"     613,  Denial  as  to  Part,  and  Tender  as  to  Residue, 748 

"     614,  Want  of  Capacity— Alien  Enemy, 748 

Notes  and  Authorities, 749 

"    615,  Assignment,    , 749 

Notes  and  Authorities, 749 

"     616,  Denial  of  Plaintiff's  Corporation, 751 

Notes  and  Authorities, 751 

"     617,  Denial  of  Trusteeship, 755 

Notes  and  Authorities,  755 

.."    618,  Denial  of  Official  Capacity, 756 

"     619,  Partnership  of  Plaintiff, 756 

Note, 756 

"     620,  Partnership  of  the  Defendant, 757 

"    621,  Want  of  Consideration — Common  Form, 757 

Notes  and  Authorities, 757 

"     622,  The  Same— That  the  Debt  was  for  Money  Lost  at  Play, ..  758 

"     623,  The  Same— That  Note  was  Given  to  Compound  a  Felony,  759 


XXIV  CONTENTS. 

FORM  PAGE 

"     624,  "Want  of  Jurisdiction  of  the  Person, 759 

Notes  and  Authorities,  760 

No.  625,  The  Same — By  a  Foreign  Corporation, 761 

"    626,  Want  of  Jurisdiction  of  the  Subject, 762 

Notes  and  Authorities, 762 

Chapter  IV. 

COUNTER  CLAIM. 

* 

FOEM  PAGE 

No.  627,  Counter  Claim  Alone, 763 

Notes  and  Authorities, 763 

Chapter  V. 

SEVERAL  DEFENSES. 
FOEM  PAGE 

• 

No.  628,  Demurrer  and  Answer, 769 

Notes  and  Authorities, 769 

"  629,  Several  Defenses  and  a  Counter  Claim,  771 

Notes  and  Authorities,  772 

"  630,  Several  Defenses — Another  Form,  772 

Notes  and  Authorities, 773 


FORMS    OF    ANSWERS. 

Subdivision  First. 
IN  ACTIONS  FOR  DEBT. 

Chapter  I. 

ANSWERS  ON  ACCOUNT. 
FOEM  PAGE 

No.  631,  Plea  of  an  Account, 776 

Notes  and  Authorities, 776 


CONTENTS.  XXV 


Chapter  n. 

ANSWERS  ox  AWARDS. 
FOBM  PAGE 

No.  632,  Invalidity  of  an  Award, 779 

Notes  and  Authorities, 779 

Denial  of  Award, 779 

Denial  of  Parol  Submission 779 

Denial  of  Performance  by  Plaintiff, 779 

Denial  of  Revocation  by  Defendant, 780 

Performance  by  Defendant, 780 


Chapter  III. 

ANSWER  ON  EXPRESS  PROMISES. 
FORM  PAGE 

No.  633,  Denial  of  Promise,  , 780 

Note, 780 


Chapter  IV. 

ANSWERS  FOR  GOODS  SOLD  AND  DELIVERED. 
FOEM  PAGE 

No.  634,  Controverting  Plaintiffs  Title,  .      780 

"    635,  Reducing  Value,  and  Pleading  Payment, 781 

Notes  and  Authorities, 781 

"     636^  Agreement  to  Take  Note  in  Part  Payment 782 

Notes  and  Authorities, 782 

"    637,  Articles  Furnished  Defendant's  Wife  not  Necessary 783 

Note,  .  , .  784 


I 

Chapter  V. 

ANSWERS  ox  GUARANTY. 
FOEM  PAGE 

No.  638,  General  Form,   784 

Note, 784 

"    639,  The  Same— Departure  from  Guaranty, 785 

%  Notes  and  Authorities, 785 


XXVI  CONTENTS. 


Chapter  VI. 

ANSWERS  ON  INSURANCE. 
FORM  PAGE 

No.  640,  Denial  of  Policy, 786 

"     641,  Denial  of  Plaintiff's  Interest, 786 

"     642,  Denial  of  Loss, 786 

Note, 787 

"     643,  Policy  Obtained  by  Misrepresentations, 787 

Notes  and  Authorities, 787 

"    644,  Transfer  without  Insurer's  Consent, 788 

"    645,  Unseaworthiness  of  Vessel, 789 

Notes  and  Authorities, 789 


Chapter  VII. 

ANSWERS  ON  JUDGMENTS. 
FOBM  PAGE. 

No.  646,  Denial  of  Judgment, 790 

Notes  and  Authorities, 790 

"     647,  Invalidity  of  a  Foreign  Judgment, 794 

Notes  and  Authorities, 794 

"    648,  Invalidity  of  Judgment  against  Non-Resident, 795 

"     649,              The  Same — Fraud  in  Obtaining  Judgment, 795 

Note, 796 

»• 

Chapter  VIH. 

I  ANSWERS. ON  THE  MONEY  COUNTS. 

FORM  PAGE 

No.  650,  Denial  of  Eeceipt, 796 

' '    651,  The  Same — Accounting  and  Payment, 796 

Notes  and  Authorities, .....  797 

"     652,  For  Money  Lent— Denial  of  Loan, 797 

"    653,  For  Money  Paid — Denial  of  Request  by  Defendant, 798 

Notes  and  Authorities, m  798 


CONTENTS.  XXV11 

Chapter  IX. 

ANSWER  FOR  SERVICES,  WORK,  AND  LABOR. 

FOEM  PAGE 

No.  654,  Accounting  and  Payment, 799 

Notes  and  Authorities, 800 

Chapter  X. 

ANSWERS  FOR  USE  AND  OCCUPATION. 
FOEM  PAGE 

No.  655,  Denial  of  Indebtedness, 803 

Note, 803 

"  656,  Denial  of  Use  and  Occupation, 803 

"  657,  Denial  of  Hiring, 803 

Notes  and  Authorities,  804 

"  658,  The  Same— Denial  by  Assignee, 804 

Note, 804 

"  659,  The  Same — Assignee's  Assignment  to  Third  Person,  ....  804 

Note 805 

"  660,  The  Same— Eviction, '. .  805 

Notes  and  Authorities,  805 

"  661,  The  Same— Surrender, 807 

"  662,  The  Same— Defense  to  one  Installment, 807 

Chapter  XI. 

ANSWERS  UPON  WRITTEN  INSTRUMENTS  FOR  THE  PAYMENT 

OF  MONEY  ONLY. 
FORM  PAGR 

No.  663,  Bills  of  Exchange — Denial  of  Acceptance, 807 

' '  664,  That  Acceptance  was  Unauthorized, 808 

"  665,  Denial  of  Presentment, 808 

Notes  and  Authorities, 808 

"  666,  That  Acceptance  was  for  Accommodation, 809 

Notes  and  Authorities, 809 

' '  667,  Denial  of  Acceptance,  Presentment,  and  Protest, 810 

"  668,  Controverting  Excuse  for  Non-Presentment, 811 

Note, 8.11 

"  669,  .  Payment  Before  Indorsement, 811 

Note,  .  ...  811 


XXV111  CONTENTS. 

FOBM  PAGE 

No.  670,  Promissory  Note,  Denial  of  Note, 812 

Notes  and  Authorities, 812 

"  671,  Denial  of  Indorsement, 819 

Notes  and  Authorities, 819 

"  672,  That  Defendant  Indorsed  as  Agent, 820 

Note, 821 

"  673,  Denial  of  Presentment,  821 

Note, 821 

"  674,  Denial  of  Notice  of  Dishonor, 822 

"  675,  Alteration  of  Instrument, 822 

Note, 822 

"  676,  Usury  as  a  Defense  upon  a  Note,  823 

Notes  and  Authorities,  823 

"  677,  That  the  Note  was  for  Goods  Sold  by  Means  of  Deceit,  . .  825 

"  678,  Illegal  Interest  in  Note 825 

Note, 826 

"  679,  Fraud— Note  Procured  by  Fraud, 826 

Notes  and  Authorities,  827 

"  680,  That  the  Note  was  for  Goods  Sold  on  a  False  Warranty, . .  828 

Note, 829 

"  681,  Eecoupment  for  Breach  of  Warranty,  829 

Notes  and  Authorities, 830 

"  682,  That  the  Note  was  for  Accommodation,  and  was  Misapplied,  830 

Notes  and  Authorities, 831 


FORMS    OF    ANSWERS. 

Subdivision  Second. 
Ox  BREACHES  OF  CONTRACTS. 

Chapter  I. 

Ox  BUILDING  CONTRACTS. 
FOEM  PAGE 

No.  683,  Work  not  Finished,  and  Architect's  Certificate  not  Obtained, ...  833 
Notes  and  Authorities,  833 


CONTENTS.  XXIX 


Chapter  n. 

Ox  CHARTER  PARTIES. 
FOEM  PAGE 

No.  684,  Denial  of  Offer  to  Perform, 834 

Note, ..834 


Chapter  in. 

Ox  COVENANTS. 
FOEM  PAGE 

No.  685,  Denial  of  Covenant, 835 

Note, 835 

"    686,  Denial  of  Breach,  .    835 

Notes  and  Authorities, 836 

Chapter  IV. 

Ox  EMPLOYMENT. 
FOBM  PAGB 

No.  687,  Denial  of  Contract, ' 837 

"     688,  Denial  of  Plaintiffs  Performance, 837 

"     689,  Performance  by  Defendant,   837 

"     690,              Excuse  for  Non-Performance,   838 

Note, 838 


Chapter  V. 

Ox  INDEMNITY. 
FOBM  PAGE 

No.  691,  Denial  of  Performance,   839 

Notes  and  Authorities, 839 


Chapter  VI. 

Ox  PROMISE  OF  MARRIAGE. 
FOEM  PAGE 

No.  692,  Denial  of  Promise,   840 

"    693,  Denial  of  Plaintiffs  Readiness  and  Offer  to  Marry, 840 


XXX  CONTENTS. 

FORM  PAGK 

No.  694,  Denial  of  Breach,    841 

"     695,  That  Plaintiff  was  of  Bad  Character, 841 

"     606,  Another  Form,  841 

Misconduct,    842* 

Chapter  VH. 

Ox  SALE  AXD  DELIVERY  OF  CHATTELS. 

FOBM  PAGE 

No.  697,  Explaining  Contract,  and  Showing  a  Breach  as  to  Delivery, 842 

Notes  and  Authorities, 842 

"     698,  The  Same— Breach  of  Warranty  by  Plaintiff, 843 

"     699,  The  Same,  as  to  Quality, 844 

Notes  and  Authorities, 844 

Chapter  VIII. 

Ox  SALE  OF  REAL  PROPERTY. 
FORM  PAGE 

No.  700,  Denial  of  Agreement, 845 

"     701,  Denial  of  Plaintiff's  Performance, 846 

Note, 846 

"     702,  Breach  of  Warranty  by  Plaintiff,    8i6 

Chapter  IX. 

Ox    UxDERTAKIXGS,    BOXDS,    ETC. 

FOBM  PAGE 

No.  703,  Failure  of  Consideration, 847 

Notes  and  Authorities, 847 


CONTENTS.  XXXI 

FORMS     OF     ANSWERS. 

Subdivision  Third. 
INJURIES  TO  THE  PERSON. 

Chapter  I. 
ASSAULT  AND  BATTERY. 

FOBM  PAGE 

No.  704,  General  Denial,   852 

"    705,  Denial  of  Battery, 852 

Notes  and  Authorities, 852 

"    706,  Self  Defense,    853 

Notes  and  Authorities, 854 

"    707,  Acts  Done  to  Preserve  the  Peace 854 

"    708,  Defense  of  Possession  of  Dwelling 855 

"    709,  The  Same— Resistance  of  Entry, 855 

"     710,  Justification  by  Captain  of  Vessel,    856 

Notes  and  Authorities, 856 

"    711,  Justification  of  Removing  Plaintiff  from  Railroad  Car  on  Non- 

Payment  of  Fare, 857 

Notes  and  Authorities, 858 

Chapter  II. 

FOR  FALSE  IMPRISONMENT. 

FOEM  PAGE 

No.  712,  Denial  of  Arrest, 858' 

Note, '. 859 

"     713,  Denial  of  Want  of  Proper  Cause,    859 

Notes  and  Authorities, 859 

"     714,  Justification  of  Arrest  on  Suspicion  of  a  Felony, 860 

Notes  and  Authorities, 860 

"    715,  The  Same — Of  Arrest  under  Criminal  Process, 861 

Note,    86 

"     716,  Justification  by  Officer, 862 


XXX11  CONTENTS. 

Chapter  m. 

LIBEL  AND  SLANDER. 
FORM  PAGE 

No.  717,  Denial  of  Inducement, ' 863 

Notes  and  Authorities, 863 

"    718,  Justification — Truth  of  Publication,  where  Charge  is  Specific,   ..  867 

"    719,              Where  Charge  is  General, 868 

Notes  and  Authorities, 868 

"    720,  Justification  and  Denial  of  Malice  in  Charge  of  Larceny,    869 

Note, 870 

"    721,  Answer  Setting  up  Defense  and  Mitigating  Circumstances, 870 

"    722,  Privileged  Publication, 871 

Note, 872 

"     723,              Another  Form, 872 

"    724.              Another  Form, 873 

Note, '. 873 

Chapter  IV. 

INJURIES  CAUSED  BY  NEGLIGENCE. 

FOEM  PAGE 

No.  725,  Denial  of  Ownership  and  Possession,    874 

"    726,  Plaintiffs  own  Negligence,  874 

Notes  and  Authorities, 875 

"     727,  Denial  of  Possession  of  Vicious  Dog,    875 

Note, 875 

"    728,  Denial  of  Scienter, 876 


FORMS    OF    ANSWERS. 

Subdivision  Fourth. 
IN  ACTIONS  FOR  INJURIES  TO  PROPERTY. 

Chapter  I. 

BAILEES. 
FOEM  .  PACK 

No.  729,  Denial  of  Bailment,    877 

Notes  and  Authorities, 877 


CONTENTS.  XXX111 


Chapter  II. 

COMMON  CARRIERS. 
FORM  PAGE 

No.  730,  Denial  of  Being  a  Common  Carrier, 878 

Note, 878 

"    731,  Denial  of  Employment, 879 

Note, 879 

"    732,  Denial  of  Eeceipt  of  Goods,   879 

if     733,              Of  Loss, 880 

"    734,  That  Contract  was  Special, 880 

Notes  and  Authorities 880 

"    735,  Damage  by  Plaintiffs  Fault,   881 


Chapter  III. 

BY  AGENTS,  EMPLOYEES  AND  OTHERS,  FOR  NEGLIGENCE. 

FOEM  PAGE 

No.  736,  Denial  of  Negligence  in  Sale, 882 

Note, 882 

"     737,  Denial  of  Negligence  in  Giving  Credit 883*. 

"     738,  Denial  of  Injury, 883 

"     739,  Denial  of  Injury  from  Collision,  883 

Notes  and  Authorities, 884 


Chapter  IV. 

SLANDER  OF  TITLE. 
FOEM  PAGE 

No.  740,  Answer  in  Action  for  Slander  of  Title, 886 


Chapter  V. 

TRESPASS. 
FORM  ,  (  PAGE 

No.  741,  Trespass  on  Land — Denial  of  Plaintiff's  Title,    886 

•    Notes  and  Authorities, 887 

"     742,  Denial  of  Plaintiff's  Possession,   887 

Notes  and  Authorities, 887 

iii 


XXXIV  CONTENTS. 

FOBM  PAGE 

No.  743,  Justifying  Trespass — Fences  Defective, 889 

Note, 889 

"     744,  Justification  of  Rebuilding  Fence,    , 889 

Note, 890 

"     745,  Leave  and  License, 890 

Notes  and  Authorities, 890 

"    746,  Trespass  on  Chattels — Denial  of  Eight  of  Possession,    891 

"    747,  Benial  of  Breaking,    891 

"     748,  Denial  of  Taking,    891 

Notes  and  Authorities, 892 

"    749,  Justifying  Trespass  by  Virtue  of  Requisition  of  Claim  and  De- 
livery,   • 893 

Notes, 893 

"    750,  Justification  under  Execution, 894 

"    751,  Justification  of  Breaking  Plaintiff's  House,  by  Virtue  of  Search 

Warrant,   895 

Notes, .  897 


FORMS    OF    ANSWERS. 

Subdivision  Fifth. 
FOR  THE  POSSESSION  OF  SPECIFIC  PROPERTY. 

Chapter  I. 

PERSONAL  PROPERTY. 
FOEM  PAGE 

No.  752,  Conversion— Denial  of  Plaintiff's  Ownership, 898 

Note, 898 

"  753,  Denial  of  Bailment,  ' 899 

Note,  899 

"  754,  £ien  upon  Goods  Detained,  899 

Note, 899 

"  755,  Lien  for  Services 900 

Notes  and  Authorities; 900 

"  756,  Claim  and  Delivery, ' 902 

Notes  and  Authorities,  902 


CONTENTS.  XXXV 

FORM  PAGE 
No.  757,  Title  in  Another  than  Plaintiff,  905 

Notes  and  Authorities, 905 

"  758,  Defendant  Part  Owner,  906 

Note, 906 

Chapter  n. 

EJECTMENT. 
FOBM  PAGE 

No.  759,  Answer  Containing  Special  Denials, 907 

Notes  and  Authorities, 907 

"    760,             Denial  of  Title,    911 

Note, 911 

"    761,  Answer  Containing  Several  Defenses,    911 

Notes  and  Authorities, 912 

"     762,  By  One  of  Several  Tenants  Charged  as  Joint  Tenant, 919 

Notes  and  Authorities, 919 

"    763,  Estoppel, 922 

Notes  and  Authorities 922 

"    764,  Equitable  Estate  in  Defendant, 925 

Notes  and  Authorities, 925 

"    765,  Adverse  Possession,  927 

Notes  and  Authorities, 927 


FORMS     OF     ANSWERS. 

Subdivision  Sixth. 
IN  ACTIONS  CONCERNING  REAL  PROPERTY. 

Chapter  I. 

FORECLOSURE  OF  MORTGAGES  AND  LIENS. 
FOBM  PAGE 

No.  766,  Denial  of  Mortgage,   932 

Notes  and  Authorities, 932 

"     767,  Mortgage  not  Recorded, 935 

"    768,  Mortgage  not  Assigned, 936 

"    769,  Non-Joinder  of  Assignee  of  Mortgagor 936 


XXXVI  CONTENTS. 

FORM  PAGE 

No.  770,  No  Equitable  Assignment, 936 

"    771,  Equity  of  Redemption  not  Assigned, 937 

"    772,  Answer  Setting  up  a  Judgment, 937 


Chapter  II. 

NUISANCES. 
FOBM  PAGE 

No.  773,  Denial  of  Plaintiff's  Title, 938 

"     774,  Denial  of  Nuisance, 938 

Notes  and  Authorities, .  938 


Chapter  HI. 

PARTITION. 
FORM  PAGE 

No.  775,  Pendency  of  Partnership, 940 

Notes  and  Authorities, 940 


Chapter  IV. 

ANSWERS  IN  ACTIONS  TO  QUIET  TITLE. 

FOBM  PAGE 

No.  776,  Containing  Special  Damage,  Plea  of  Statute  of  Limitations,  and 

Cross  Complaint, : 941 

Notes  and  Authorities, 944 

"    777,  Disclaimer,  .  945 


Chapter  V. 

ANSWERS  FOR  WASTE. 

FOKM                                                                                                            PAGE 
No.  778,  Denial  of  Waste,  . .  945 


CONTENTS.  XXX  Vll 

FORMS    OF    ANSWERS. 

Subdivision  Seventh. 
Ix  ACTIONS  FOR  SPECIFIC  RELIEF. 

Chapter  I. 

ANSWERS  IN  CREDITORS'  SUITS. 
FOBM  PAGE 

No.  779,  Specific  Denials, 947 

Notes  and  Authorities, 947 

"    780,  Bona  Fide  Purchaser, 948 

Notes  and  Authorities, 949 

Chapter  H. 

ANSWERS  IN  DISSOLUTION  OF  PARTNERSHIP. 
FOEM  %  PAGE 

No.  781,  That  the  Term  is  not  Expired, 950 

Note, 951 

"    782,  Overdrawing  Done  by  Plaintiff's  Assent, 951 

Note, 952 

Chapter  ELT. 

• 

ACTIONS  FOR  DIVORCE. 

FOKM  PAGE 

No.  783,  General  Denial, 952 

Note, 952 

"  784,  Denial  of  Adultery,  and  Counter  Claim, 953 

Notes  and  Authorities 953 

"  785,  Condonation,  955 

Note, 955 

Chapter  IV. 

ANSWERS  FOR  FRAUD. 
FOBM  PAGE 

No.  786,  Denial  of  Fraud,   955 

"    787,  Of  Mistake,  . ,  956 


XXXV111  CONTENTS. 


Chapter  V. 

ANSWERS  IN  Quo  WARRANTO. 

FOKM  PAGE 

No.  788,  General  Denials • 956 

Notes  and  Authorities, 956 


Chapter  VI. 

ANSWERS  IN  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

FOBM  PAGE 

No.  789,  Denials, 957 

"  790,  Of  Delivery  of  Possession 958 

"  791,  Of  Keadiness  to  Convey, 958 

"  792,  Performance,  958 

"  793,  Denial  of  Part  Performance, 959 

"  794,  Demand  Before  or  After  Plaintiff*  Tender, 959 

Notes  and  Authorities, 959 

"  795,  Rescission  of  Contract, 960 

Note, 960 


FORMS   OF    ANSWERS. 

Subdivision  Eighth. 
IN  STATUTORY  ACTIONS. 

Chapter  I. 

ANSWERS  IN  FORCICLE  ENTRY  AND  UNLAWFUL  DETAINER, 
POEM  PAGB 

No.  796,  For  Forcible  Entry  and  Detainer, 961 

Notes  and  Authorities 961 


PLEADING  AND  FORMS 


COMPLAINTS — SUBDIVISION  FIFTH. 

For  Damages  upon    Wrongs. 


PART  FIRST— FOR  INJURIES  TO  THE  PERSON. 
CHAPTER  I. 

FOR   ASSAULT   AND    BATTERY. 

No.  S24. 

i.    Common  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.   That  on  the day  of ,   187.,  the 

defendant  violently  assaulted  the  plaintiff,  and  struck 
him  [state  wkere~\  several  blows,  and  also  tore  the 
clothes  from  the  plaintiff's  person  \_describe  the  violence 
used,  and  its  consequences^. 

Wherefore    the     plaintiff    demands    judgment    for 
dollars  damages. 

1.  Abatement  of  Action. — Actions  for  assault  and  battery  can 
only  be  brought  in  the  name  of  the  party  immediately  injured,  and  if 
he  die  the  remedy  determines,  (i  Chitt.  PI.  60.)  This  is  the  rule 
at  common  law,  but  is  changed  by  the  statutes  of  many  of  the  states. 
And  for  injuries  committed  on  the  wife  by  battery,  husband  and  wife 
must  join;  and  if  she  die  before  judgment  the  suit  abates,  (i  Chitt.  73.) 
But  if  the  wife  dies  after  judgment,  the  judgment  survives  to  the  husband. 
12  Serg.  <5f  Rawle,  76. 

I 


2  FORMS   OF    COMPLAINTS. 

2.  Assault  Defined. — An  assault  is  an  unlawful  attempt,  coupied 
with  a  present  ability,  to  commit  a  violent  injury  on  the  person  of 
another.     (Gen.  Laws  of  Cal.  ^[  1,451.)     An  assault  is  an  offer  to  strike, 
•beat,  or  commit  an  act  of  violence  on  the  person  of  another,  without 
actually  doing  it  or  touching  his  person.    Johnson  v.  Tompkins,  i  Bald. 
571,  600. 

3.  Assault — Instances. — Striking  at  a  person  with  the  hand  or 
with  a  stick,  or  by  shaking  the  fist  at  him,  or  presenting  a  gun  or  other 
weapon  within  such  distance  as  that  a  hurt  might  be  given,  or  drawing 
a  sword  and  brandishing  it  in  a  menacing  manner,  provided  the  act  is 
done  with  intent  to  do  some  corporal  hurt.     (United  States  v.  Ortega, 
4  Wash.  C.  Ct.  534;  United  States  v.  Hand,  2  Wash.  C.  Ct.  435.)    The 
drawing  of  a  pistol  on  another,  accompanied  by  a  threat  to  use  it  unless 
the  other  immediately  leave  the  spot,  is  an  assault,  although  the  pistol 
is  not  pointed  at  the  person  threatened.     (People  v.  McMakin.  8  Cal. 
547.)     Cocking  and  raising  a  gun,  and  threatening  to  shoot  a  person, 
when  the  act  indicates  an  intention  to  shoot.     (United  States  v.  Kierman, 

3  Cranch  C.  Ct.  435.)     Or  raising  a  club  over  the  head  of  a  woman 
within  striking  distance,  and  threatening  to  strike  her  if  she  opens  her 
mouth,  are  assaults.     (United  States  v.  Richarson,  5  Cranch  C.  Ct.  348.) 
To  double  the  fist  and  run  it  at  another,  saying:  "  If  you  do  that  again 
I  will  knock  you  down."     (United  States  v.  Myers,  i  Cranch  C.  Ct.  310.) 
So,  the  mere  taking  hold  of  the  coat  or  laying  the  hand  gently  on  the 
person  of  another,  if  done  in  anger,  or  in  a  rude  and  insolent  manner, 
or  with  a  view  to  hostility,  amounts  not  only  to  an  assault  but  to  a  bat- 
tery.    United  States  v.  Ortega,  4  Wash.  C.  Ct.  534. 

4.  Assault  and  Battery. — Assault  and  battery  is  the  unlawful 
beating  of  another.     Gen.  Laws  of  Cal.  \  1,453. 

5.  Assault   and   Slander. — A  plaintiff  may  aver  in  his  com- 
plaint  all  that  took   place  at  the  time,  though   a   part  constitute  an 
assault,  and  part  a  slander,  and  recover  damages  which  he  has  sus- 
tained, for  the  compound  injury.    Brewer  v.  Temple,  15  How.  Pr.  286. 

6.  Avoiding  Injury. — To  recover  damages  for  an  assault  and 
battery,  it  is  not  necessary  that  the  plaintiff  should  have  fled  to  avoid 
the  injury,  if  he  used  ordinary  care  to  prevent  injury,  and  it  ensued 
from  the  wrongful  act  of  the  defendant.     6  Ind.  82;  6  Black/.  185. 

7.  Battery  Denned. — A  battery  is  the  touching  or  commission 


ASSAULT    AND     BATTERY.  3 

of  any  actual  violence  on  the  person  of  another  in  a  rude  and  angry 
manner.     Johnson  v.  Tompkins,  i  Bald.  571,  600. 

8.  Damages. — In  cases  of  aggravated  assaults,  the  jury  are  per- 
mitted to  give  exemplary  or  punitive  damages.     28  ///.  486;  3  Scam. 
373;  2<ri7>».435;  6  ^27.466;  18  Mo.  71;  6  Tex.  266;  %  Rich.  (S.C.) 
144;  4  Harr.  321;  Wilsons.  Middleton,  2  Cal.  54. 

9.  Malice. — The  language  of  the  defendant  while  committing  the 
assault  is  admissible  in  evidence,  for  the  purpose  of  characterizing  the 
act  as  bearing  on  the  question  of  malice.      McDougall  v.  Maguire,  35 
Cal.  274. 

10.  Married  Woman,  Allegation  of  Assault  by. — That  on 

the  ....  day  of ,  187 . ,  the  defendant  C.  E.,  she  being  then, 

as  now,  the  wife  of  the  defendant  E.  F.  \continue  as  in  preceding  form.} 

11.  Master   of  VesseL — A  master  or  commander  of  a  vessel  is 
in  general,  not  liable  to  an  action  for  assault  and  battery,  for  chastise- 
ment inflicted  upon  a  seaman  or  marine,  where  he  acted  under  a 
sincere  conviction  that  it  was  necessary  to  enforce  discipline  or  compel 
obedience  to  orders,  and  not  from  passion  or  revenge.      (Dinsman  v. 
Wilkes,  12  How.  U.S.  390.  Morris  v.  Cornell,  Sprague,  62;  Sheridan 
v.  Furbur,  i  Blatchf.  6f  H.  423;  compare  United  States  v.  Freeman,  4 
Mass.  505;  Thompson  v.  Busch,  4  Wash.  C.  Ct.  338;  Thorne  v.  White, 
Pet.  Adm.  168.)      So,  where  a  master,  believing  there  is  immediate 
danger  of  mutiny,  makes  use  of  a  dangerous  or  deadly  weapon  to 
reduce  a  seaman,  actually  in  mutiny,  to  obedience,  he  is  not  liable. 
(Roberts  v.  Eldridge,  Sprague,  54;    United  States  #.  Colby,  Id.    119; 
United  States  v.  Lent,  Id.  31 1,)   As  to  what  will  justify  corporal  punish- 
ment of  seamen,  see  Morris  v.  Cornell,  Sprague,  62;    Payne  v.  Allen, 
Id.  304;  Sheridan  v.  Furbur,  i  Blalchf.  &  H.  423. 

12.  Master,   when  Liable. — Seamen  are  generally  entitled  to 
recover  damages  from  an  assault  and  battery  from  the  officer  of  a  ship: 
First,  Where  a  personal  violence  is  inflicted  wantonly,  and  without 
provocation   or   cause;    Second,  Where  there  was  provocation  or  cause, 
but  the  punishment  was  cruel   or  excessive;  Third,  Usually  where  the 
punishment  is  inflicted  with  a  dangerous  or  deadly  weapon.     (Forbes 
v.  Parsons,   Crabbe,  283;  compare  Dinsman  v.  Wilkes,  12  Hoiv.  Pr. 
390.)     For  the  law  governing  such  liability,  see  4  U.S.  Stat  at  L.  115; 
i  Bright.  210. 


4  FORMS    OF    COMPLAINTS. 

13.  Principal. — One  who  is  present  and  encourages  an  assault  and 
battery  is  a  principal.     2  Comst.    517;  5  Ohio,  250;  United  States  v. 
Rickets,  i  Cranch  C.  Ct.  164. 

14.  Provocation. — No  words  of  provocation  will  justify  an  assault, 
although  they  may  constitute  a  ground  for  the  reduction  of  damages. 
Cushman  v.  Ryan,  i   Story,  9 1 . 

15.  Where   Action  Lies. — Assault  and  battery  will  lie  against  a 
steamboat,  for  an  assault  and  battery  committed  by  the  mate  or  other 
officer  of  the  boat,  on  the  person  of  a  passenger,  while  such  boat  is 
being  navigated  on  the  rivers  within  or  bordering  on  the  State     (28  ///. 
412.)     Assault  and  battery  lies  for  injury  to  the  relative,  as  for  .beating 
wounding,  and  imprisoning  a  wife  or  servant,  by  which  the  plaintiff  has 
sustained  a  loss;  (9  Co.  113;  10  Co.  130;  i  Chitt.  167;)  when  not  under 
the  color  of  process,     (n  Mod.  180;  36  Barb.  495.)      So,  where  the 
battery,  imprisonment,  etc.,  were  in  the  first  instance  lawful,  but  unnec- 
essary violence  was  used,     i  Chitt.  PL  167;  3  Day,  485;  2  Wend.  497; 
7  Dana,  453;  15  Mass.  347-465;  25  Wend.  371. 

16.  Willful,  Malicious. — It  is  not  necessary  in  an  action  for  a 
simple  assault  and  battery  to  charge  in  terms  that  it  was  "willful"  or 
"malicious,"  to  entitle  the  plaintiff  to  maintain  his  action.     Andrews  v. 
Stone,  10  Minn.  72;  see  Ante,  Vol.  i.,  p.  145,  Note  100. 


JVo. 

ii.    The  Same — Short  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.    That   on  the day  of ,   187.,  at 

,  the  defendant  assaulted  and  beat  him. 

{Demand  of  Judgment^ 


ASSAULT  AND  BATTERY.  5 

JVo.  326. 

m.    The  Same  —  With  Special  Damages. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on   the  .....  day  of  .........  ,   187.,  at 

........  ,  the  defendant  assaulted  and  beat  the  plaintiff, 

until  he  became  insensible. 

II.  That   the    plaintiff  was   thereby  disabled    from 
attending  to  his  business  for  weeks  thereafter,  and  was 
compelled  to  pay  ........   dollars  for  medical  attend- 

ance, and  has  been  ever  since  disabled   [from  using  his 
left   arm;  or   otherwise  state   the  damage,  as  the  case 

may  be.~\ 

[Demand  of  Judgment,  .] 


JVo. 


iv.    Against  a  Corporation,  for  Damages  Caused  by  an  Assault  and 

Forcible  Ejection  from  a  Car. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   at    the    times    hereinafter   mentioned,  the 
defendant  was,  and  now  is  a  corporation,  duly  organized 
under  and  pursuant  to  the  laws  of  this  State,  and  was 
the  owner  of  a  certain  railroad,  known  as  the  ....... 

Railroad,  with  the  track,  cars,  and  other  appurtenances 
thereunto   belonging,  and  was    a   common   carrier   of 
passengers  from  ........  to  ......... 

II.  That  on  the  .....  day  of  .........  ,    187.,  at 

........  ,   the   defendant    with   unnecessary   violence 


6  FORMS    OF    COMPLAINTS. 

assaulted  the  plaintiff  and  forcibly  ejected  him  from  one 
of  its  cars. 

III.  That  the  plaintiff  was  thereby  disabled  from 
attending  to  his  business  for weeks  thereaf- 
ter, and  has  ever  since  been  disabled  from  using  [his 
left  foot  or  otherwise],  and  was  compelled  to  pay 
dollars  for  medical  attendance. 

[Demand  of Judgment '.] 


17.  Conductor  of  Car. — The  right  of  a  car  conductor  on  a  rail- 
road to  expel  a  passenger  for  non-payment  of  the  fare,  must  be  exer- 
cised in  such  a  manner  as  is  consistent  with  the  safety  of  the  passenger's 
life.     He  must  first  stop  the  car,  and  if  he  attempts  to  eject  him  with- 
out stopping  the  car,  the  passenger  has  the  same  right  to  repel  the 
attempt  that  he  has  to  resist  a  direct  attempt  to  take  his  life.     (See  San- 
ford  v.  Eighth  Av.  R.R.  Co.,  23  N.F.  343.)     Although  a  person  may 
be  wrongfully  upon  the  cars,  the  conductor  must  use  reasonable  care 
and  prudence  in  removing  him.     Kline  v.  C.  P.  R.  R.  Co.,  Cal.  Sup.  Ct., 
Apl  T.,  1869. 

18.  Corporations. — An  action  of  trespass  for  assault  and  battery 
will  lie  against  a  corporation,  if  it  has  power  to  authorize  the  act  done, 
and  has  done  so;  and  a  servant  of  the  company  may  be  joined  as 
defendant.     Brokam  v.  N.J.  R.  and  T.  Co.,  3  Vroom,  328. 

19.  Damages. — In  cases  of  injury  to  the  person  from  negligence 
of  the  conductor  of  a  car,  the  law  does  not  prescribe  any  fixed  or  defi- 
nite rule  of  damages,  but  from  necessity  leaves  their  assessment  to  the 
good  sense  and  unbiased  judgment  of  the  jury.     Aldrich  v.  Palmer,  24 
Cal.  413;  cited  in  Wheaton  v.  N.  B.  and  M.  R.R.  Co.,  Cal.  Sup.  Ct., 
Oct.  T.,  1868. 

20.  Exemplary    Damages. — A    railroad    company    may    be 
charged  with  exemplary  damages  for  injuries  done  with  force  or  malice 
to  a  passenger  by  a  conductor  of  said  company.     Baltimore  and  Ohio 
R.R.  Co.  v.  Blocher,  27  Md.  277. 

21.  Master  and   Servant. — The  master  is  liable  for  the  ser- 


ASSAULT    AND     BATTERY.  7 

vant,  if  he  acts  within  the  scope  of  his  authority.  (Kline  v,  C.  P.  R.  R. 
Co.,  Cal.  Sup.  Ct.,  Apl.  T.,  1869.)  The  relation  of  conductor  on  a  car 
and  the  company  for  whom  he  is  acting  as  conductor  is  that  of  master 
and  servant,  and  the  relation  being  established,  all  else  is  mode  and 
manner,  and  as  to  that  the  master  is  responsible.  Kline  v.  C.  P.  R.  R. 
Co.,  Cal  Sup.  Ct.,  Apl.  T.,  1869. 

22.  Forcible  Ejection. — If  a  person  be  of  mature  years,  the 
mere  words  of  the  driver,  ordering  him  to  get  off,  could  not  be  regarded 
as  a  forcible  ejection  of  the  plaintiff  from  the  car  at  a  time  when  it  was 
dangerous  to  leave  it;  but  if  a  child  of  ten  years  of  age  was  so  ordered, 
his  obedience  would  be  naturally  expected,  without  regard  to  the  risk  he 
might  incur,  and  in  respect  to  a  child  so  young  the  command  would 
be  equivalent  to  compulsion.     (Lovett  v.  Salem  and  South  Danvers 
R.R.  Co.,  9  All.  (Mass.)  561;  cited  in  Kline  v.  Central  Pacific  R.R. 
Co.  of  Cal.,  Cal.  Sup.  Ct.,  Apl.  T.,  1869;)  where  it  goes  on  to  state: 
"We  have  no  doubt  that  in  case  a  show  or  demonstration  of  force  suffi- 
cient to  impress  a  reasonable  person  with  the  belief  that  it  will  be 
employed,  must  he  held  to  be  the  equivalent  of  actual  force."     Kline 
v.  Central  P.  R.R.  Co.,  Id. 

23.  Mutual  Negligence. — If  the  plaintiff  be  in  the  wrong,  yet 
if  his  wrong  or  negligence  is  remote — that  is,  does  not  immediately 
accompany  the  transaction  from  which  his  injury  resulted — the  defend- 
ant cannot  excuse  himself  on   the   score   of  mutuality,  nor  absolve 
himself  from  his  obligation  to  exercise  reasonable  care  and  prudence 
in  what  he  may  do.    (Kline  v.  C.  P.  R.R.  Co.,  Cal.  Sup.  Ct.,  Apl.  T.,  1 869.) 
So,  the  entry  on  a  car,  if  an  accomplished  fact,  is  only  a  remote  cause 
of  the  injury  inflicted  by  a  subsequent  ejection  from  the  car;  nor  did 
it  absolve  the  conductor  from  the  duty  of  observing  reasonable  care 
and  prudence  in   putting  him   off  the   train.     (Id.)     Mutual  or   co- 
operating negligence,  which  deprives  one  party  of  any  right  of  action 
against  the  other,  is  when  the  act  which  produced  the  injury  would 
hot  have  occurred   but  for  the  combined  negligence  of  both.     But 
where  the  negligence  of  one  party  would  produce  injury  in  any  event, 
with  or  without  the  negligence  of  the  other,  then  it  becomes  a  mere 
question  of  adjustment  of  damages.     (Thomas  v.  Kenyon,  Daly,  132.) 
Where  negligence  exists  on  both  sides,  that  of  the  plaintiff  must  have 
contributed  to  the  injury,  or  it  will  not  excuse  the  defendant.     Haley 
v.  Earle,  30  N.Y.  208. 

24.  Removing  Trespassers. — A  man  cannot  lawfully  push 


8  FORMS    OF    COMPLAINTS. 

another  off  from  his  land,  without  first  requesting  him  to  get  off. 
(Thompson  v.  Berry,  i  Crunch  C.  Ct.  45.)  But  mechanics  in  charge  of 
a  house  which  they  are  building  have  a  right  to  remove  gently  persons 
coming  into  the  building  without  authority.  United  States  v.  Bartle,  I 
Cranch  C.  Ct.  236.)  The  abuse  of  legal  authority  which  will  make  a 
person  a  trespasser  ab  initio,  is  the  abuse  of  some  special  and  particular 
authority -given  by  law;  and  the  doctrine  does  not  apply  to  the  case  of 
an  agent  in  a  factory  who  uses  improper  force  in  ejecting  a  disorderly 
person  employed  there.  Esty  v.  Wilmot,  15  Gray.  168. 


No.  328. 

v.   Assault  and  False  Imprisonment — Short  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.     That  on  the  ....  day  of ,    187.,   the 

defendant  assaulted  and  beat  the  plaintiff,  and  imprisoned 
him  for hours. 

{Demand  of  Judgment^ 

25.  Arrest. — The  circumstances  of  the  arrest  should  not  be  set 
out  in  the  complaint.     If  so  set  forth,  they  may  be  striken  out  upon 
motion.      Eddy  v.  Beach,  7  Abb.  Pr.  17;    Shaw  v.  Jayne,  4  How.  Pr. 
119. 

26.  Circumstances.* — Allegations  of  the  circumstances  in  detail  on 
a  charge  of  false  imprisonment  and  assault,  in  connection  with  an  illegal 
combination  and  conspiracy,  were  allowed  in  a  great  measure  to  stand^ 
Moloney  v.  Dows,  15  How.  Pr.  261. 


ASSAULT    AND    BATTERY.  9 

No.  329. 

vi.   The  Same — Fuller  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on  the  ....  day   of ,187.,  the 

defendant  assaulted  the  plaintiff,  and  gave  him  into  the 
custody  of  a  policeman,  and  forced  and  compelled  him 
to  go  to  a  police-station,  and  there  caused  him  to  be 
imprisoned,  and  caused  him  to  be  kept  in  prison  for  a 
long  time,  until  he  was  afterwards  brought  in  custody 

before  one  of  the  police  magistrates  of ,  and 

the   defendant   then  again  charged  him  with  the  said 
offense;    but   the  said   magistrate    dismissed    the    said 
charge,    and    caused    him   to    be    discharged    out  of 
custody. 

II.  That  the  plaintiff  thereby  suffered  damage  in  the 
amount  of  .  . .' dollars. 

[Demand  of Judgment, ,] 


CHAPTER  II. 

FOR    FALSE    IMPRISONMENT. 

No.  330. 

i.    Common  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.     That   on   the day  of ,    187 .,  at 

,  the  defendant  imprisoned  him  for  ....  days 

[or  hours,  as  the  case  may  be],  without  probable  cause. 
[State  special  damage,  if  any.~\ 

[Demand  of  Judgment^ 


1.  Arrest  "without  Proof. — A  person  who  without  bad  faith  has, 
upon  oath  or  otherwise,  merely  stated  his  case  to  a  magistrate  having 
jurisdiction  of  the  offense  supposed  to  have  been  committed,  and  of 
the  person  accused,  is  not  liable  to  an  action  for  false  imprisonment 
upon  the  consequent  arrest  of  the  accused,  although  such  arrest  is  not 
warranted  by  the  law  or  the  facts  in  the  case.     Von  Latham  v.  Libby, 
38  Barb.  339;    citing  10  A.  &  E.  (N.S.)  18;    i  C.  6f  M.  330;    3  M. 
&  W.  418;  6  Mann.  G.  <Sf  6".  365;    22  Wend.  552;   and  disapproving 
13  Abb.  Pr.  276. 

2.  Circumstances  of  Arrest. — The  particular  instrumentality 
by  which  the  plaintiff  was  deprived  of  his  liberty  should  not  be  set  out 
in  the  complaint.     If  the  circumstances  of  the  arrest  are  set  forth,  they 
may  be  struck  out  upon  motion.     Molony  v.  Dows,  15  Hoiv.  Pr.  266. 

3.  Corporation. — A  corporation  may  be  sued  in   trespass   for 
false  imprisonment.     Ovvsley  v.  Montgomery  R.R.  Co.,  37  Ala.  560. 


FALSE    IMPRISONMENT.  I  I 

4.  Election  of  Remedy. — As  to  the  ekction  of  remedy  between 
an  action  for  false  imprisonment  and  malicious  prosecution,  where  either 
form  is  admissible,  see  Von  Latham  v.  Libbey,  38  Barb.  339;  17  Abb. 
Pr.  237;  Brown  v.  Chadsey,  39  Barb.  253. 

5.  False  Imprisonment  Defined. — False  imprisonment  is  an 
unlawful  violation  of  the  personal  liberty  of  another,  and  consists  in 
confinement  or  detention  without  sufficient  legal  authority.     (Gen.  Laws 
of  Cla.  ^[  1,454.)    As  a  crime,  false  imprisonment  is  not  a  felony  under 
the  laws  of  California.    People  v.  Ebner,  23  Cal.  158. 

6.  False  Imprisonment,  -what  it  Avoids. — A  gift  obtained 
by  threat  or  wrongful  imprisonment  is  void.     (Remesen  v.  Vanderpoel, 
i  Daly,  71.)     Error  of  judgment  on  the  part  of  the  magistrate  will  not 
render  the  process  issued  by  him  void.     Von  Latham  v.  Libby,  38 
Barb.  339;    17  Abb.  Pr.  237. 

7.  Malice. — Malice  and  falsehood  are  essential  ingredients  in  an 
action  for  malicious  prosecution,  but  are  not  essential  to  an  action  for 
false  imprisonment,  in  which  however  the  element  of  want  of  probable 
cause  is  necessary.     Platt  v.  Niles,  i  Edm.  230. 

8.  Principal  and    Agent. — Where  a  private  person  takes  any 
part  in  an  unlawful  imprisonment  of  another,  he  becomes  a  principal 
in  the  act,  and  is  liable  for  the  trespass;  but  where  he  merely  communi- 
cates facts  or  circumstances  of  suspicion  to  officers,  leaving  them  to  act 
upon  them  on  their  own  judgment  and  responsibility,  he  is  not  liable. 
7  C.  &  P.  373;  Burns  v.  Erber,  26  How.  Pr.  273;  Brown  v.  Chadsey, 
39  Barb.  253.)     A  shopkeeper  is  not  liable  for  the  act  of  his  super- 
intendent and  clerks,  in  calling  a  policeman,  and  causing  the  arrest  and 
search  of  a  woman  suspected  of  stealing  goods,  if  done  without  his 
authority,  express  or  implied.     Mali  v.  Lord,  39  N.Y.  381. 

9.  Sufficient   Averment. — In  order  to  sustain  a  charge  for 
false  imprisonment,  it  is  not  necessary  for  the  plaintiff  to  show  that  the 
defendant  used  violence,  or  laid  hands  on  him,  or  shut  him  up  in  a 
jail  or  prison;  but  it  is  sufficient  to  show  that  the  defendant,  at  any 
place  or  time,  in  any  manner,  restrained  the  plaintiff  of  his  liberty,  or 
detained  him  in  any  manner  from  going  where  he  wished,  or  prevented 
him  from  doing  what  he  desired.     Hawk  v.  Ridgway,  33  ///.  473. 

10.  Want  of  Jurisdiction. — Where  one  is  arrested,  tried,  and 
convicted  for  an  act,  which,  if  it  were  an  offense,  was  one  of  which  the 


12  FORMS    OF    COMPLAINTS. 

court  had  no  jurisdiction,  his  imprisonment  cannot  afterward  be  justified 
by  showing  that  the  evidence  at  the  trial  would  have  convicted  him  of 
another  offense  which  was  triable  in  that  court.  Wait  v.  Green,  5 
Park.  Cr.  185. 

11.  Where  Action  Lies. — Though  the  original  arrest  be  war- 
rantable, an  action  for  false  imprisonment  lies  for  any  subsequent 
oppression  or  cruelty.     I  T.  R.  536;  Esp.  Dig.  332;  Doyle  v.  Russell, 
30  Barb.  300. 

12.  When  Action  Lies. — Though  the  original  arrest  be  war- 
rantable,  an   action  for   false   imprisonment  lies  for  any  subsequent 
oppression  or  cruelty.     (Doyle  V.  Russell,  30  Barb.  300.)     Actions  for 
malicious  prosecution  require  different  rules  both  of  pleading  and  evi- 
dence, and  are  essentially  distinct.     (Brown  v.  Chadsey,  39  Barb.  253.) 
Where  imprisonment  only  is  complained  of,  the  action  is  for  false  im- 
prisonment.    Burns  v.  Erben,  26  How.  Pr.  273. 

13.  Who  Liable. — Where  a  person  has  been  arrested  upon  a 
criminal  charge,  without  any  competent  evidence  of  his  guilt,  the  mag- 
istrate and  prosecutor  are  jointly  liable  to  an  action  for  false  imprison- 
ment.    Comfort  v.  Fulton,  13  Abb.  Pr.  276. 


No.  331. 

ii.    The  Same — Another  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.    That   on   the  ....  day   of ,    187 .,   at 

,  the  defendant  by  force  compelled  the  plaintiff 

to  go  with  him  to  the  police  office  [or  otherwise^ ,  and 
there  imprisoned  him,  and  then  and  there  detained  him 

restrained  of  his  liberty  for  the  space  of days, 

without  probable  cause,  and  without  any  right  or  author- 
ity so  to  do,  and  against  the  will  of  the  plaintiff;  where- 
by the  plaintiff  was  bruised  and  wounded,  and  was  also 


FALSE    IMPRISONMENT.  13 

injured  in  his  credit,  and  was  prevented  from  attending 
to  his  business  during  that  time,  and  was  compelled  to 

pay dollars    for   costs    and    counsel    fees    in 

obtaining  his  discharge. 

[Demand  of  Judgment^ 

14.  Special  Damage. — Allegation  of  special  damage  by  reason 
of  the  imprisonment  may  be  inserted  in  the  complaint.  (Molony  v. 
Dows,  15  How.  Pr.  266.)  But  in  the  same  case  allegations  of 
aggravating  circumstances  were  struck  out.  In  an  action  for  false, 
imprisonment  against  a  justice  of  the  peace,  it  was  held  that  the  plaintiff 
could  not  recover  in  damages  the  amount  of  costs  incurred  by  him  in 
an  unsuccessful  application  for  his  discharge  on  a  writ  of  habeas  corpus, 
such  costs  not  having  been  alleged  as  special  damages  in  the  complaint. 
Spence  v.  Neynell,  2  Neiv.  Mag.  Cas.  19;  contra,  Williams  v.  Garrett, 
12  How.  Pr.  456. 


CHAPTER  III. 

LIBEL   AND    SLANDER. 

No.  332. 

i.    For  Libel — The   Words  being  Libelous  in  Themselves. 
[TITLE.] 
The  plaintiff  complains,  and  alleges: 

I.  That    on    the  ....  day    of ,    187 . ,    at 

,   the    defendant  /published    in   a   newspaper 

called  the [or  in  a  letter  addressed  to  C.  D.], 

the   following  words  of  and  concerning  the  plaintiff: 
[set  forth  the  words  usedJ] 

II.  That  the  said  publication  was  false. 

[Demand  of  Judgmentl\ 


14.  FORMS    OF    COMPLAINTS. 

1.  Allegations  Material. — The  material  allegations  in  an  action 
of  libel,  where  words  are  defamatory  on  their  face,  and  in  the  English 
language,  are:    (First,)  That   defendant  with   malice  or  wrongfully, 
(Second,)   published,   (Third,)   of  and  concerning   plaintiff,    (Fourth,} 
these  false  words.    In  slander,  instead  of  alleging,  (Second,)  "published," 
it  is  customary  to  allege,   "  That  he  spoke  in  the  presence  and  hearing 
of  divers  persons;"  (Wood  v,  Gilchrist,  i  Code  R.  117;  Anon.,  3  How. 
Pr.  406;)  although   the  word  "published"  imports,  ex  vi  termini,  a 
speaking  in  the  presence  and  hearing  of  somebody.   (Duel  v.  Agan,  i 
Code  R.  134;   see,  also,  Lettman  v.  Ritz,  3  Sandf.  734;   and  Debaix  v. 
Lenhind,   i  Code  R.  235.)    From  a  libel,  damage  is  always  implied 

.  by  law;  whereas  some  kinds  of  slander  only  are  actionable  without 
proof  of  special  damage.     Broom's  Comm.  513. 

2.  Concerning  the  Plaintiff — In  actions  for  libel  or  slander, 
it  shall  not  be  necessary  to  state  in  the  complaint  any  extrinsic  facts,  for 
the  purpose  of  showing  the  application  to  the  plaintiff  of  the  defama- 
tory matter  out  of  which  the  cause  of  action  arose;  but  it  shall  be 
sufficient  to  state  generally  that  the  same  was  published  or  spoken  con- 
cerning  the  plaintiff.     Cal.  Pr.  Act,  §  62;  see,  also,  N.Y.  Code,  3,164; 
Laws  of  Oregon,  §  88;  i  Whitt.  Pr.  697;  Van  Santv.  271;  16  Wend.  9; 
C.  Corns t.  177. 

3.  Corporations. — A  corporation  aggregate   has  the   capacity  to 
compose   and  publish  a   libel,    and  by    reason  thereof,   when   done, 
becomes  liable  to  an  action  for  damages,  by  the  person  of  and  con- 
cerning whom  the  words  are  composed  and  published.     Maynard  v. 
Fireman's  Fund  Ins.  Co.,  $$jCal.  48. 

4.  Definitions  of  Label. — A  libel  is  a  written  or  printed  slander. 
(i  Hilliard  on  Torts,  ch.  vii.  32.)     A  libel  is  a  malicious  defamation, 
expressed  either  by  printing  or  by  signs  or  pictures,  or  the  like,  tending 
to  blacken  the  memory  of  one  who  is  dead,  or  to  impeach  the  honesty, 
integrity,  virtue,  or  reputation,  or  publish  the  natural  defects  of  one  who 
is  alive,  and  thereby  expose  him  or  her  to  public  hatred,  contempt  or 
ridicule.     (Gen.  Laws  of  Cal.  *\  i,  520;  see,  also,  Rev.  Stat.  of  III.  1845, 
where  the  same  definition  is  adopted.)     Definitions  of  libel,  as  fixed  by 
statute,  may  be  found  in  (Rev.  Stat.  of  Me.  1840;  Iowa  Rev.  Code,  1851 ; 
Ark.  Rev.  Stat.  1837,  p.  280;  Georgia  Princes'  Dig.  643,  644;  Hotchk. 
Dig.  739;  2  Cobb's  Dig.  812;   Watson  v.  Trask,  5  Ohio,  471;    Gage  v. 
Robinson,  12  Id.  250;  Fisher  v.  Paterson,  14  Ohio,  418.)     Libel   is 


LIBEL    AND    SLANDER.  15 

both  a  public  wrong  or  crime,  and  a  private  wrong  or  tort,  cognizable 
by  the  common  law.  The  remedy  for  the  public  wrong  is  by  indict- 
ment or  criminal  information.  The  remedy  for  the  private  wrong  is  a 
civil  action  now  known  as  an  action  or  the  action  of  or  for  libel. 
Towns/iend  on  Slander  and  Libel,  22.)  The  rule  is  generally  laid  down 
that  a  publication  is  libelous  when  its  necessary  effect  is  to  diminish  the 
plaintiffs  reputation  for  respectability,  impair  his  condition,  and  abridge 
his  comforts,  by  exposing  him  to  disgrace  and  ridicule.  (Hunt  v. 
Bennett,  4  E.  D.  Smith,  647.)  For  definition  of  libel,  see  Towns- 
hend  on  Slander  and  Libel,  3 1 ;  George  on  Libel,  3  5 ;  Com.  Dig;  Capel 
Lofts,  Ess.  on  Lib.  6 ;  Burr.  Law  Diet.;  Russ.  Treat  of  Cri.  and  Misde. 
308 ;  Hawkins  PI.  Cr.;  i  Hill,  on  Torts,  ch.  viii.  313;  Holt  on  Lib.  213; 
i  Mence  on  Lib.  125;  Bowrer;  8  Law  Times  R.  (N.S.)  604;  3  Johns. 
Ch.  354;  9  Johns.  214;  I  Den.  347;  Cow.  613;  5  Harr.  475;  Walker, 
403;  Wright,  47;  3  How.  U.S.  266;  8  Blackf.  426;  4  Mas.  115;  4 
Mass.  163,  167;  McCord,  317. 

5.  Exemplary  Damages. — If  the  injury  was  willful  or  intentional, 
if  express  malice  is  proved,  the  jury  are  at  liberty  to  award  damages, 
not  only  to  compensate  the  actual  and  pecuniary  loss,  upon  the  ground 
of  compensation  for  mental  suffering,  public  disgrace,  etc.,  but  they  may 
further  award  exemplary  damages.     Foy  v.  Bennett,  i  Abb.  Pr.  289; 
Esro  v.  Roscoe,  4  N.Y.  162;  Hunt  v.  Bennet,  19  N.Y.  173;  Tillotson 
v.  Cheatham,  3  Johns.  56;  Hoyt  v.  Gelston,  13  Id.  141;  Wert  v.  Jen- 
kins, 14  Id.  352;  Woodward  v.  Paine,  15  Id.  493;  King  v.  Root,  4 

Wend.  113;  Allen  v.  Addington,  7  Wend.    9;  u  Id.  380;  12  Id.  215; 
but  see  2  Greenl.  Ev.  §  253;  and  Dain  v.  Wycoff,  7  N.Y.  191. 

6.  Gist  of  Action. — Pecuniary  loss  to  the  plaintiff  is  the  gist  of 
the  action  for  slander  or  libel.     (Townshend  on  Slan.  and  Lib.   57.) 
If  the  language  published  has  not  occasioned  the  plaintiff  pecuniary 
loss,  actual  or  implied,  no  action  can  be  maintained.     (3  Wit's.  177; 
6  T.  R.  691;  7  D.  &  R.  649;  2  East.  426.)     And  actual  loss  must  be 
shown  to  have  been  sustained.     Borthwrich  on  Libels,  4. 

1.  Intent. — There  may  or  may  not  be  any  intent,  good  or  bad;  but 
intent  or  no  intent,  the  liability  is  for  the  act  and  its  consequences,  not  for 
the  intent.  The  usual  ground  upon  which  the  liability  is  placed,  is  that 
the  law  presumes  every  one  to  intend  the  necessary  and  natural  conse- 
quences of  his  acts.  (Haine  v.  Wilson,  9  B.  &  Cr.  643;  Viele  v.  Gray, 
1 8  Abb.  Pr.  7.)  So,  also,  one  is  liable  for  the  consequences  of  his  acts, 


1 6  FORMS    OF    COMPLAINTS. 

because  the  law  will  not  presume  the  actor  intended  any  other  than  the 
consequences  of  his  act.  (Townshend  on  Stan,  and  Lib.  66.)  Inten- 
tion held  immaterial  in  (Bullocks.  Babcock,  3  Wend.  391;  Baker  v. 
Bailey,  16  Barb.  60;)  if  the  words  are  a  libel.  (People  v.  Freer,  i 
Cat.  485.)  And  in  a  private  case  of  libel,  motives  are  out  of  the  ques- 
tion. Port  v.  King,  7  Cow.  633. 

8.  Intent — Motive. — The  intent  with  which  an  action  is  done  is 
by  no  means  the  test  of  liability  of  a  party  to  an  action  of  trespass. 
(Guille  v.  Swan,  19  Johns.  381 ;  Percival  v.  Hickey,  18  Id.  257;  Tremain 
v.  Cohoes  Co.  2  Comst.  164;  Safford  v.  Wycoff,  i  Hill,  n.)  Bona 
fides  will  not  protect  a  magistrate  who  does  an  illegal  act.  (Prickett  v. 
Greatrex,  i  *New.  Mag.  Cas.  543;  7  Law  Times,  139.)  It  is  immate- 
rial with  what  motive  a  man  does  an  unlawful  act.  ( Amick  v.  O'Hara, 
6  Blatchf.  258.)  So,  an  assault  and  battery  committed  with  a  purpose 
to  ridicule  the  plaintiff  or  bring  him  into  contempt,  partakes  of  the 
nature  of  libel;  and  in  order  to  recover  damages  for  the  injury  to  repu- 
tation, as  well  as  for  that  to  the  person,  the  complaint  should  be  for 
assault  and  battery,  but  should  aver  intent  to  defame,  and  injury  to 
reputation,  in  addition  to  the  usual  averments  in  actions  for  assault  and 
battery.  (Compare  Sheldon  v.  Carpenter,  4  N.F.  579;  Watson  v.  Haz- 
zard,  3  Code  R.  218.)  Thus,  averments  of  the  business  of  the  parties, 
that  the  assault  was  for  the  purpose  of  compelling  the  plaintiff  to  give 
up  his  business,  and  of  bringing  him  into  disgrace  and  ridicule,  and  that 
the  assault,  etc.,  caused  him  to  be  ridiculed  by,  etc.,  though  not  essential 
to  a  cause  of  action,  are  not  immaterial.  The  motives  and  intent,  and 
the  consequences  resulting,  are  material  on  the  question  of  damages. 
Root  v.  Foster,  9  How.  Pr.  27. 

9.  Joinder. — It  would  seem  that  plaintiff  may  unite  in  one  com- 
plaint a  cause  of  action  for  slander  with  a  cause  of  action  for  libel,  or 
for  malicious  prosecution;  (8  Abb.  Pr.  3;  15  Ohio,  173;  5  Esp.  13;  Cro. 
Car.  271;  42  Barb.  543;  3  Bing.  (N.C.)  950;)  or  for  slander  of  title. 
(16  Up.  Can.  C.  P.  Rep.  114.)  But  a  cause  of  action  in  a  plaintiff 
singly  for  slander  of  him  in  his  partner  ship  business,  cannot  be  joined 
with  a  cause  of  action  in  him  and  his  partners  jointly.  (Robinson  v. 
Merchant,  7  Q.  B.  918.)  And  where  a  complaint  contains  several 
causes  of  action,  each  must  be  separately  stated  and  numbered.  (5 
How.  Pr.  171.)  And  must  be  complete  in  itself.  Holt  v.  Muzzy,  30 
Vt.  365;  Sinclair  v.  Fitch,  3  E.  D.  Smith,  689;  see  Vol.  i.  p.  532, 
Note  ii. 


LIBEL   AND    SLANDER.  IJ 

10.  Language  Set  Out. — The  complaint  should  set  out  the  very 
words  published.     (Wesley  v.  Bennet,  5  Abb.  Pr.  498;  Rundel  v.  But- 
ler, 7  Barb.  260;  Forsyth  v.  Edmiston,  2  Abb.  Pr.  430;  Finnerty  v. 
Barker,  7  N.Y.  Leg.  Obs.  317;  Sullivan  v.  White,  6  Irish  Law  R.  40; 
Whitaker  v.  Freeman,  I  Dev.  271;  Lee  v.  Kane,  6  Gray,  (Mass.)  495; 
Taylor  v.  Moran,  4  Met.  (Ky.}  127;  Commonwealths.  Wright,  i  Cush. 
46.)    The  true  term  to  be  used  to  indicate  that  the  very  words  are  set 
forth  is  "tenor."     (i  Cush.  46;  Wright  v.  Clements,  3  B.  &.  Aid.  503.) 
It  is  not  enough  to  state  its  purport.     (Wood  v.  Brown,  6  Taunt.  169;  i 
Eng.  Com.  Law  R.  560.)    And  when  the  words  were  published  in  a 
foreign  language,  the  foreign  words  must  be  set  forth  in  the  original; 
(Zenobia  v.  Axtell,  6  T.  R.  162;)  together  with  a  translation  into  Eng- 
lish.    (Townshend  on  Slan.  and  Lib.  412.)     To  set  forth  the  foreign 
words  alone,  or  their  translation  alone,  would  not  be  sufficient.     (3  Wend. 
394;  3  Sand/.  734;  3  Den.  346;  3  Chand.  263;  12  Ind.  453;  6  Black/. 
351;  3  Watts,  28.)    The  rule  that  the  exact  language  used  should  be 
set  out  does  not  render  it  necessary  to  set  forth  the  whole  of  the  matter 
published;  (Deyo  v.  Brundage,  13  How.  Pr.  221 ;  Culver  v.  Van  Auden, 
4  Abb  Pr..  375;  Rex  v.  Breverton,  8  Mod.  329;  Sidman  v.  Mayo,  i  Rolle 
R.  459;)  but  an  extract  of  the  particular  passage  complained  of.     Cheet- 
ham  v.  Tillotson,  5  Johns.  430. 

11.  Libel  and  Slander. — In  every  slander  there  are  two  acts, 
composing  and  publishing.     In  every  libel  there  are  three  acts,  composing, 
writing,  and  publishing.     So  every  publication  of  language  concerning  a 
man  or  his  affairs,  which  as  a  necessary  or  natural  and  proximate  conse- 
quence occasions  pecuniary  loss  to  another,  is  prima  facie  a  slander,  if 
the  publication  be  oral;  and  a  libel  if  it  be  by  writing.     Townshend' s 
Slan.  and  Lib.  68. 

12.  Malice    is   Presumed. — When  the  words  published  are 
unambiguous,  and  not  capable  of  being  understood  in  any  other  sense 
than  as  defamatory  to  an  extent  that  must  necessarily  expose  the  plaintiff 
to  contempt  and  ridicule,  they  are  by  implication  of  law  malicious.     It 
is  not  necessary  to  allege  in  the  complaint  that  the  publication  was  false 
and  malicious.     Such  an  allegation,  though  common  and  quite  proper, 
is  a  mere  matter  of  form,  the  lack  of  which  is  no  objection  to  a  plead- 
ing.    (Hunt  v.  Bennett,  16  N.Y.   176;  Root  v.  King,  7  Cow.  620.) 
That  the  words  are  "a  libel"  is  a  sufficient  allegation  of  falsehood  and 
malice.     (See  above  authorities;  and  Fry  v.  Bennet,  5  Sand/.  54;  Viele 
a.  Gray,  18  Hoiv.  Pr.  550.)     So,  a  general  averment  of  malice  is  suf- 

2 


1 8  FORMS    OF     COMPLAINTS. 

ficient.  (Purdy  v.  Carpenter,  6  How.  Pr.  361.)  In  an  action  for  libel, 
it  is  not  indispensable  to  use  the  word  "maliciously"  in  the  declaration. 
It  is  sufficient  if  words  of  equivalent  power  or  import  are  used.  White 
v.  Nichols,  3  How.  U.S.  266. 

13.  Malice,  how  Averred. — Any  form  of  words  from  which 
malice  [absence  of  excuse]  can  be  inferred,  as  that  the  publication  was 
made  falsely  or  wrongfully,  will   suffice.     (Toivnshend  on   Slan.  and 
Lib.   4lo.)     For  one  meaning  of  malice  is  absence  of  legal   excuse. 
(Townshend  on  Slan.  and  Lib.  85.)     And  a  pleading  may  be  sufficient 
without  an   especial   averment  of    malice.       (Opdyke   v.  Weed,    18 
Abb.  Pr.  223.)      So,  a   declaration   which   charged   the   publication 
to     be    "  malicious,     injurious,     and     unlawful , ' '     was    held     suf- 
ficient.    (Rowe  v.  Roach,  i  Mass.  <&"  Sel.  304.)     The  averment  usual  in 
the  old  precedents,  that  the  defendant,  well  knowing  the  premises,  etc., 
maliciously  intending  to  injure  the  plaintiff,  etc.,  and  to  bring  him  into 
great  scandal  and  disgrace,  and  to  cause  it  to  be  believed   that  the 
plaintiff  had  been  guilty,  are  superfluous.     (Coleman  v.  South  wick,  9 
Johns.   45.)     So,   also,  that  the  defendant,  on,  etc.,  falsely  and  mali- 
ciously published,  etc.,  the  false,  malicious,  scandalous,  and  defamatory 
matter  following,  is  unnecessary. 

14.  Malice,    Allegations    of. — An  allegation  that  the  publi- 
cation was  a  libel,  held  equivalent  to  an  allegation  that  it  was  false  and 
malicious,  (Hunt  v.  Bennett,  19  N.Y.  176.)     In  all  cases  where  the 
facts  are  within   the  knowledge  of  the  defendant,  or   the   statement 
involved  is  in  itself  libelous,  a  general  allegation  of  malice  will  be  suf- 
ficient,  without  any  statement  of  facts  and  circumstances.     (Viele  v. 
Gray,  10  Abb.  Pr.  i;  Howard  v.  Sexton,  4  Corns f.  157;  Buddington  v. 
Davis,  6  How.  Pr.  401.)     So,  express  malice,  or  want  of  probable  cause, 
need  not  be  averred.     Purdy  v.  Carpenter,  6  How.  Pr.  361;  Littlejohn 
».  -Greely,  1 3  Abb.  Pr.  4 1 . 

15.  Malice,  when  not  Implied. — In  actions  against  reporters, 
editors,  or  proprietors  of  newspapers,  for  an  alleged  libel  in  the  report 
of  any  judicial,  legislative,  or  other  public  official  proceeding,  or  of  any 
statement,  speech,  argument,  or  debate,  malice  in  publishing  the  report 
is  not  implied  by  the  publication.     (Sandford  v.  Bennett,  24  N. Y.  20.) 
An  accurate  report  in  a  newspaper  of  a  debate  in  parliament,  con- 
taining  matter   disparaging   an   individual,  is    not    actionable.     The 
publication  is  privileged  on  the  ground  that  the  advantage  of  publicity 
to  the  community  outweighs  any  private  injury;  and  comments  in  the 


LIBEL   AND    SLANDER.  19 

newspaper  on  the  debate  are  so  far  privileged  that  they  are  not  actiona- 
ble, so  long  as  they  are  honest,  fair,  and  justified  by  the  circumstances 
disclosed  in  the  debate.  Wason  v.  Walter,  Law.  Rep.  4  Q.  B.  73. 

16.  Parties. — In  libel,  all  who  concur  in  the  publication  may  be 
sued  together;    (Forsyth  v.   Edmiston,   2   Abb.  Pr.  430;)  though  the 
general  rule  is  otherwise  as  to  slander,  as  words  uttered  by  one  are  not 
the  words  of  another.     But  if  one  repeats,  and  another  writes,  and  a 
third  approves  what  is  written,  all  are  liable.     (Thomas  v.  Rumsey,  6 
Johns.  26.)     Partners  may  sue  for  a  libel  upon  them,  in  respect  of  their 
business,  but  can  recover  only  for  injury  to  their  firm.     (Taylor  v. 
Church,  i  E.  D.  Smith,  279.)     For  a  libel  on  partners,  all  the  part- 
ners may  sue  together.     Taylor  v.  Church,  4  Seld.  452. 

17.  Privileged    Communications. — Communications    which 
have  been  held  to  be  privileged :  A  memorial  to  the  Postmaster-General, 
charging  fraud  against  a  successful  candidate  for  a  contract.     (Cook  v. 
Hill,  3  Sandf.  341;  Buddington  v.  Davis,  6  Haw.  Pr.  401.)     A  physi- 
cian granting  a  certificate  of  lunacy  pursuant  to  statute.     (Perkins  v. 
Mitchell,  31  Barb.  461.)    A  charge  preferred  by  one  member  of  a  lodge 
against  another.      (Street  v.  Wood,  15  Barb.  105.)      Words  spoken  or 
written  in  a  legal  proeeeding ,  pertinent  and  material  to  the  subject  of  the 
controversy,  are  privileged.      (Garr  v.  Selden,  4  Comst.  91;    Perkins  v. 
Mitchell,  31  Barb.  461.)      A  written  communication  from  a  banker  in 
the  country  to  a  mercantile  firm  in  the  city,  in  respect  to  the  pecuniary 
responsibility  of  a  party  whose  note  had  been  forwarded  for  collection. 
(Lewis  v.  Chapman,  16  N.Y.  369;  reversing  same  case,  19  Barb.  252.) 
The  withdrawal  by  employer  of  former  recommendation  of  discharged 
employee  is  privileged,  unless  it  is  shown  to  be  malicious.    (Fowles  v. 
Bowen,  30  N.Y.  20.)      The  publication  of  a  slander  by  a  murderer  at 
the  time  of  his  execution  is  not  privileged.     (Sanford  v.  Bennett,  24 
N.Y.  20.)      So,  proceedings  before  a  grand  jury  are  not  privileged. 
(McCabe  v.  Cauldwell,  18  Abb.  Pr.  377.)    The  comments  on  privileged 
communications  are  not  protected,  if  libelous  themselves.     (Edsall  v. 
Brooks,  26  How.  Pr.  426;    17  Abb.  Pr.  221.)      The  defendant,  in  a 
privileged  communication,  described  the  plaintiff's  conduct  as  "  most 
disgraceful  and   dishonest."     The   conduct  so  described  was   equiv- 
ocal, and  might  honestly  have  been  supposed  by  the  defendant  to  be 
as  he  described  it.     Held,  that  the  above  words  were  not  of  themselves 
evidence  of  actual  malice.     (Spill  v.  Maule,  L.  R.  4  Exch.  232.)     For 
additional  communications  which  are  deemed  privileged,  see." Answers." 


2O  FORMS   OF    COMPLAINTS. 

18.  Proprietor  and  Publisher,  Liability  of. — In  a  complaint 
for  libel  it  is  a  sufficient  allegation  of  its  publication  by  the  defendant  to 
allege  that  he  was  the  proprietor  of  the  newspaper  in  which  it  was 
published,  without   otherwise  alleging   that   he  published  it,  or   was 
concerned  in  its  publication.    (Hunt  v.  Bennett,  19  N.Y.  173;  affirming 
S.C.,  4  E.  D.  Smith,  647.)      A  receiver  of  a  newspaper  concern,  pend- 
ing a  suit  to  settle  the  partnership  accounts  of  its  proprietors,  will  be 
personally  responsible  for  any  publication  therein  which  is  improper, 
although  the  order  of  his  appointment  directs  that  the  defendants  may 
continue  to  superintend  the  editorial  department.  (Martin  v.  Van  Shaick, 
4  Paige,  479.)      But  the  assignee  of  a  newspaper  establishment,  as  a 
collateral  security,  is  not  liable  for  a  libel  published  in  it.      As  to  the 
general  doctrine  respecting  the  liability  of  publishers  and  proprietors  of 
newspapers,  booksellers,  etc.,  see  2   Greenl.  Ev.  §   416;  2  Starkie  oiq, 
Slander,  28-34;  i  Carter,  2nd.  344. 

19.  Publication. — Every  communication  of  language  from  one 
to  another  is  a  publication;  but  to  constitute  an  actionable  publication  it  is 
essential  that  there  be  a  publication  to  a  third  person,  and  the  husband 
or  wife  of  either  author  or  publisher,  or  of  the  one  whom  or  whose 
affairs  the  language  concerns,  is  regarded  as  a  third  person.     Town- 

shend's  Slan.  and  Lib.  90. 

• 

20.  Publication,  Averment  of. — A  statement  that  the  defend-' 
ant  was  proprietor  of  a  newspaper,  and  that  the  words  were  published 
therein,   is  a  sufficient   averment  of  publication.     Hunt  v.  Bennett,  4 
E.  D.  Smith,  647;  affirmed  19  N.Y.  173. 

21.  Publication,    how   Alleged. — The  publication   must  be 
alleged,  but  it  need  not  be  set  forth  in  any  technical  form  of  words; 
(2  W.  Black.- 1,037;)  but  it  must  be  alleged  positively,  and  not  by  way 
of  recital.    (Donage  v.  Rankin,  4  Munf.  261.)   The  word  "published" 
is  the  proper  and  technical  term  by  which  to  allege  publication.   (Stark, 
on   Slan.    359.)      But  any  equivalent  allegation  will  suffice.     (Towns- 
hend  Slan.    and    Lib.    408;    2     W.   Black.    1,037;    2    Hall,    172;    4 
E.    D.   Smith,    647.)      But    to    allege    that    defendant    composed, 
wrote,  and  delivered  a  certain  libel  addressed  to  the  plaintiff,  was  held 
insufficient.      (Waisted  v.  Holman,   2   Hall,   172.)      That  defendant 
sent  a  letter  to  plaintiff,  which  was  received  and  read  by  him,  does  not 
show  a  sufficient  publication.     (Lyle  v.  Clason,   i    Cat.   581.)      It  is 
necessary  to  allege  that  it  was  in  fact* seen  or  read  (by  others).   (Giles  v. 
The  State,  6  Geo.  276.)     So,  where  the  writer  reads  to  a  stranger  his 


LIBEL    AND    SLANDER.  21 

letter  to  the  plaintiff  before  dispatching  it,  it  is  a  publication.  Snyder 
z>.  Andrews,  6  Barb.  43;  McCombs  v.  Tuttle,  5  Blatchf.  431;  Van 
Cleef  v.  Lawrence,  2  City  Hall  Recorder,  41. 

22.  Satire. — The  distinction  between  the  satirist  and  the  libeler 
is  that  the  one  speaks  of  the  species,  the  other  of  the  individual.  {Joseph 
Andrews,  Vol.  ii.  p.  5.)  So,  an  action  for  libel  will  only  lie  upon  words 
concerning  distinguishable  persons,  and  cannot  be  brought  upon  words 
which  relate  to  a  class  or  order  of  men.  Sumner  v.  Buell,  12  Johns. 
475;  Ryckman  v.  Delavan,  25  Wend.  186;  reversing  White  v.  Delavan, 
17  Id.  50. 

'23.  Special  Damages. — Those  damages  which  are  not  the 
necessary  consequence  of  the  language  complained  of  must  be  specially 
alleged  in  the  complaint.  (Squier  v.  Gould,  14  Wend.  159;  Strang  z>. 
Whitehead,  12  Id.  64;  Birch  v.  Benton,  26*  Miss.  155;  Johnson  v. 
Robertson,  8  Port.  486;  Barnes  v.  Trundy,  31  Me.  321;  Bostwick  v. 
Nicholson,  Kirby,  65;  Bostwick  v.  Hawley,  Id.  2 go;  Shipman  v.  Bur- 
rows, i  Hall,  399;  Harcourt  v.  Harrison,  Id.  474;  Geave  v.  Britton, 
Bull.  N.P.  7;  Wilson  v.  Runyon,  Wright,  651.)  But  a  complaint  in 
an  action  for  words  in  writing  charging  insanity  need  not  allege  special 
damage.  (Perkins  v.  Mitchell,  31  Barb.  461.)  So,  in  an  action  by 
one  of  several  partners.  (Robinson  v.  Merchant,  7  Q.  B.  918.)  An 
action  cannot  be  maintained  by  an  author  for  a  publication  disparaging 
his  copyright  work,  without  an  allegation  of  special  damage.  Swan  v. 
Tappan,  4  Cush.  (Mass.)  104. 

24.  Wrongs — Remedies. — Slander  or  libel  is  an  infringement  of 
the  absolute  rights  of  persons.  (Parker  v.  Russell,  4  How.  Pr.  235.) 
And  the  character  of  persons  is  undoubtedly  one  of  their  absolute  and 
personal  rights.  Holt  on  Lib.  15. 


22  FORMS    OF    COMPLAINTS. 

JVo.  333. 

ii.    For  Libel — The   Words  not  being  Libelous  in  Themselves. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  the  plaintiff  is,  and  was,  on  and  before  the 
....  day  of ,  187.,  a  merchant,  doing  busi- 
ness in  the  City  of 

II.  That   on   the  ....  day  of ,187.,    at 

,  the  defendant  published  in  a  newspaper  called 

the    [or   in  a   letter  addressed  to  E.  F.,  or 

otherwise   show   hwv  piiblished~\   the  following  words 
concerning  the  plaintiff:  [' ' A.  B. ,  of  this  City,  has  modestly 
retired  to  foreign  lands.     It  is  said  that  creditors  to  the 

amount  of dollars,  are  anxiously  seeking  his 

address."] 

III.  That  the  defendant  meant  thereby  that  [the 
plaintiff  had  absconded  to  avoid  his  creditors,  and  with 
intent  to  defraud  them]. 

IV.  That  the  publication  was  false. 

[Demand  of  Judgment.  \ 


Form. — This  form  is  from  the  New  York  Code  Comm'rs  Book  of 
Forms. 

26.  Ambiguous  Article. — It  may  be  averred  of  an  ambiguous 
article  that  it  was  published  with  a  particular  intent,  and  was  so  under- 
stood by  its  readers,  and  this  averment  may  be  proved  on  the  trial. 
(Gibson  v.  Williams,  4  Wend.  320.)     This  is  more  strictly  correct  than 
to  employ  an  innuendo  for  the  same  purpose,  as  was  permitted  in 
Blaisdell  v.  Raymond,  4  Id.  446. 

27.  Capacity  must  be  Averred. — When  the  words  charge 


LIBEL   AND    SLANDER.  23 

bear  relation  to  the  plaintiff  in  his  business  or  official  capacity,  such 
capacity  should  be  averred  in  a  traversable  form  in  the  complaint. 
(2  Green!.  Ev.  §  412;  Carroll  v.  White,  33  Barb.  615.)  And  the  fact 
of  his  being  engaged  in  such  business  or  profession  at  the  time  the  words 
were  spoken  should  be  alleged.  (Carroll  v.  White,  33  Barb.  615.)  In 
such  an  action  special  damages  need  not  be  alleged.  (Butler  v.  Howes,  7 
Cal.  87.)  As  to  the  responsibility  of  an  editor  in  respect  to  comments 
upon  the  manager  of  a  theater,  see  Fry  v.  Bennett,  3  Bosw.  200;  Id., 
5  Sandf.  54;  9  L.  0.  330;  i  C.  R.  (N.S.)  238;  Id.,  4  Duer,  247. 

28.  Construction. — Where  the  words  alleged  in  a  complaint  for 
libel  are  fairly  susceptible  of  a  construction  which  would  render  them 
libelous,  the  complaint  will  be  sustained  upon  demurrer,  although  the 
words  may  also  be  interpreted  so  as  to  be  innocent.     (Wesley  v.  Ben- 
nett, 5  Abb.  Pr.  498.)     Where,  in  an  action  for  libel,  the  words  com- 
plained of  are  not  per  se  libelous,  what  the  defendant  intended  and 
understood  them  to  mean,  by  those  to  whom  they  were  published,  con- 
stitutes a  proper  subject  of  averment  in  pleading  and  proof  on  the  trial, 
and  if  what  was  so  intended  and  understood  by  the  defendant,  and 
understood  by  those  to  whom  the  words  were  published,  was  libelous, 
the  words  are  actionable.     Maynard  v.  Fi.  Fund  Ins.  Co.,  34  Cal.  48. 

29.  Extrinsic  Facts. — Where  the  actionable  quality  of  language 
depends  upon  the  capacity  of  the  plaintiff,  and  the  language  itself  does 
not  disclose  that  he  is  in  such  capacity  or  occupation,  an  averment  that 
plaintiff  is  of  such  a  trade  or  profession  will  be  sufficient.     But  where 
the  language  is  actionable  of  the  plaintiff  as  an  individual  also,  it  is  not 
necessary  to  allege  an  inducement.   Townshend  on  Stand,  and  Lib.  400 ; 
Gage  v.  Robinson,  12  Ohio,  250. 

30.  Extrinsic  Matter. — When  the  words  used  by  the  defendant 
do  not  of  themselves  convey  the  meaning  which  the  plaintiff  would  at- 
tribute to  them,  and  such  meaning  results  only  from  some  extrinsic 
matter  or  fact,  such  extrinsic  matter  or  fact  must  be  alleged  in  the  com- 
plaint, and  proved  on  the  trial.     It  is  therefore,  necessary  for  the  plaintiff 
in  such  a  case  distinctly  to  aver  the  extrinsic  fact  upon  which  he  relies 
to  make  the  publication  libelous.     (Caldwell  v.  Raymond,  2  Abb.  Pr. 
193;  see,  also,  33  Vt.  182;  16  Pick,  i.)     Where  the  publication  is  not 
defamatory  on  its  face,  the  existence  of  extrinsic  facts  rendering  it  de- 
famatory must  be  alleged.     (Pike  v.  Van  Worner,  5  How.Pr.  171;  6 
Id.  99;    Fry  v.  Bennett,   5  Sand.  54;    i  Code  Rep.  (N.S.)  247;    Dias  v. 
Short,  1 6  How.Pr.  322;  Blaidsell  v.  Raymond,  4  Abb.  Pr.  446;  Carroll 


24  FORMS    OF     COMPLAINTS. 

v.  White,  33  Barb.  615;  Culvers.  Van  Anden,  4  Abb.  Pr.  375;  Hallock 
v.  Miller,  2  Barb.  630.)  But  where  it  is  not  essential,  such  statement 
would  be  mere  surplusage.  (Townshend  on  SI.  and  Lib.  397.)  By  the 
statute,  it  is  no  longer  necessary  to  state  an  inducement.  So  in  New 
York.  (Ante,  Note  13.)  So  in  Missouri,  (Strieber  v.  Wensel,  19  Mo. 
513;)  and  Wisconsin.  (Van  Slyke  v.  Carpenter,  7  Wis.  173.)  So, 
also,  in  Massachusetts,  where  "  a  distinct  averment  in  regard  to  the 
person  spoken  of,  and  a  clear  reference  of  the  calumnious  words  to 
that  person,  is  all  that  is  required."  Miller  v.  Parish,  8  Pick.  383; 
Stark,  on  Slan.  390. 

31.  Innuendo. — The  office  of  an  innuendo  is  to  explain;  not  to  ex- 
tend, what  has  gone  before;  and  it  cannot  enlarge  the  meaning  of 
words,  unless  it  be  connected  with  some  matter  of  fact  expressly  averred. 
(2  Gilm.  720;  5  Johns.  211.)     Nor  can  it  change  the  ordinary  meaning 
of  language.     (Hays  v.  Mitchell,  7  Blackf.  117.)     Nor  introduce  new 
matter,      (i  Chip.  275;  16  Vt.  83;  6  Ala.  88 1.)     It  is  only  a  link  to 

..attach  together  facts  already  known  to  the  Court.  (Cooke  on  Defamation, 
94.)  It  cannot  attribute  to  words  a  meaning  which  renders  them  action- 
able (Holton  v.  Muzzy,  30  Vt.  365),  without  a  prefatory  averment 
of  extrinsic  facts  which  makes  them  slanderous.  2  Dev.  115;  2  Shep. 
317;  8  N.H.  256;  8  B.  Monr.  486;  16  Pmn.  204;  6  Gratt.  334;  2 
Bibb.  319. 

32.  Innuendo,  Office   of. — The   use  of  innuendoes  is  in  part 
retained  and  in  part  dispensed  with  under  our  system  of  pleading. 
If  the  words  used  are  not  libelous,  per  se,  but  are  made  sd  by  some 
extrinsic  matter  alleged  by  way  of  inducement,  innuendoes  are  necessary 
to  show  the  connection  of  such  words  with  the  intrinsic  facts.     So  also, 
where  the  publication  is  made  libelous  by  reference  to  extrinsic  matter 
not  necessary  to  be  alleged.      In  such  case,  the  extrinsic  fact  should  be 
suggested  by  an  innuendo.     Where  words  are  not  libelous  per  se,  the 
extraneous  facts  must  be  stated  in  the  introduction  or  inducement;  as  an 
innuendo  cannot  extend,  but  only  apply  the  words.    (Nichols  v.  Packard, 
16  Vt.  83;  Brown  v.  Brown,  2  Shepley,  317;    Harris  v.  Burley,  8  N.H. 
256;    Linville  v.  Early  wine,  4  Blackf.  469;  Tappan  v.  Wilson,  7  Ohio, 
190,  Part  i.)  The  employment  of  the  innuendo  will  be  indulged  where 
the  convenience  of  pleading  demands  it,  though  in  some  cases  it  ma 
not  be  strictly  proper.      See  Blaisdell  v.  Raymond,  4  Abb.  Pr.    446 
Contra  v.  Raymond,  2  Id.  193. 

33.    Innuendoes,  when  not  Essential. — When  the  language 


LIBEL    AND    SLANDER.  25 

is  not  in  itself  applicable  to  the  plaintiff,  no  innuendo  can  make  it  so. 
( TmvnsKend's  Slan.  and  Lib.  114,  426.)  But  if  the  plaintiff  is  designated 
by  another  name  in  the  libel,  his  real  name  may  be  designated  by  an 
innuendo.  (Hays  v.  Brierly,  4  Watts,  392.)  Where  it  is  desired  to 
connect  the  words  charged  with  the  colloquium,  or  to  show  the  meaning 
imputed  to  words  libelous  per  se,  we  consider  that  innuendoes  may  be 
dispensed  with;  and  it  will  always  be  unsafe  to  rely  on  an  innuendo,  un- 
supported by  a  distinct  prefatory  averment,  to  show  a  libelous  meaning 
not  evident  from  the  words  used.  As  to  proof  of  libelous  meaning  by 
extraneous  evidence,  and  as  to  sufficiency  of  innuendo  drawn,  see 
Wachter  v.  Quenzer,  29  N.Y.  547;  Butler  v.  Wood,  10  How.  Pr.  222. 

34.  Letter. — A  complaint  which  alleges  that   defendant  sent  a 
letter  to  plaintiff,  and  the  same  was,  by  means  of  such  sending  thereof, 
received  and  re'ad  by  plaintiff,  and  thereby  published  by  the  plaintiff,  is 
not  good ;  for  the  letter  is  presumed  to  be  sealed,  and  sending  a  letter 
is  not  publication.     (Lyle  v.  Clason,  i  Cat.  581.)     But  reading  aloud  a 
letter  containing  libelous  matter  amounts  to  publication.     Snyder  v. 
Andrews,  6  Barb.  43. 

35.  Libelous   Imputations. — Imputations  which  are  libelous: 
An  imputation  of  the  receipt  of  money  for  procuring  a  public  appoint- 
ment is  said  to  be  libelous.     An   imputation   of  insanity.     (Perkins 
v.  "Mitchell,    31    Barb.    461.)      Corruption    against    a    member    of 
the  Legislature.     (Littlejohn  v.  Greeley,  13  Abb.  Pr9.  41.)    A  statement 
by  the   keeper   of  an   intelligence  office,   reflecting  on  the  business 
capacity  of  the  partners  of  a  mercantile  firm.    Taylor  v.  Church,  4  Seld. 
452;  Giraud  v.  Beach,  4  E.  D.  Smith,  337;  see,  further,  Townshend's 
Slan.  and  Lib. 

36.  Libelous  Intent  and  Meaning. — Where  a  complaint  only 
averred  a  libelous  intent  and  meaning  on  the  part  of  the  defendant,  in 
the  composing  and  publishing  of  the  words,  without  averring  that  they 
were  so  understood  by  those  to  whom  they  were  published :    Held,  that 
a  demurrer  to  the  complaint,  on  the   ground  that  the    written    and 
published   words  set   forth   do   not   constitute   a   libel,  was   properly 
sustained.     Maynard  v.  F.  F.  Ins.  Co.  34  Cal.  48. 

37.  Special  Damage. — When  the  words  are  in  the  natural  and 
obvious  construction,  injurious,  some  damage  is  to  be  presumed,  and 
it  is  not  essential  to  allege  special  damage;  (Perkins  v.  Mitchell,  31  Barb. 


26  FORMS    OF     COMPLAINTS. 

461;)  but  when  the  Court  can  discern  no  injurious  meaning  in  the 
plain  and  natural  purport  of  the  publication  itself,  the  plaintiff  must 
aver  and  prove  special  damage.  Caldwell  v.  Raymond,  2  Abb.  Pr.  193; 
Stone  v.  Cooper,  2  Den.  299;  Bennett  v.  Williamson,  4  Sandf.  60. 

33.  Of  and  Concerning  Plaintiff — Although  inducement  may 
be  necessary  to  explain  the  matter  alleged  to  be  libelous,  it  is  enough 
to  state  in  the  declaration  that  the  publication  was  "  of  and  concerning  " 
the  plaintiff.  ( Townshend  Sland.  and  Lib.  4p6.)  The  Court  assumes  the 
words  complained  of  do  in  fact  refer  to  the  plaintiff.  (Wesley  v.  Ben- 
nett, 5  Abb.  Pr.  498.)  By  Section  sixty-two  of  our  Civil  Practice  Act, 
the  averment  that  the  same  was  published  concerning  the  plaintiff  sup- 
plies the  place  of  all  averments  of  extrinsic  facts,  which  might  other- 
wise be  necessary  to  show  the  application  of  the  words  charged  to  the 
plaintiff.  This  averment  is  essential,  and  cannot  be  supplied  by  an 
innuendo.  See  Ante,  Note  30. 

39.  Reputation — Character. — Reputation  is  the  estimate  in  which 
an  individual  is  held  by  public  fame  in  the  place  where  he  is  known.  (Cooper 
v.  Greely,  i  Den.  347.)  And  it  is  not  necessary  to  prefix  the  word  general. 
(French  v.  Millard,  22  Ohio R.  50.)     The  words  "character"  and  "re- 
putation," though  often  used  synonymously,  are  in  fact  not  synonymous. 
(20  Ohio,  18;  22  Id.  50.)    That  they  are  the  same,  see  (3  Serg.  <5f  R. 
337.)     That  character  is  a  term  convertible  with  common  report,  (Id.} 
And  that  general  character  is  the  estimation  in  which  a  person  is  held 
in  the  community  where  he  resides,  see  (Douglass  v.  Tonsey,  2  Wend. 
354.)     It  is  the  result  of  general  conduct.     (Sharp  v.  Scoggin,  HolfsN. 
P.C.  541;    3  Am.  Law  J.  (N.S.)  145.)    While  "chaste  character" 
means  actual  personal  virtue — not  mere  reputation.     Carpenter  v.  The 
People,  8  Barb.  603;  Crozier  v.  The  People,  i  Park.  Cr.  453;  Safford 
v.  The  People,  Id.  474. 

40.  Special  Damages. — Where  the  words  are  actionable  per  se, 
special   damage   need   not  be  alleged.       Hicks  v.  Walker,  2   Greene 
(Iowa),  440. 

41.  Words   with   a   Covert  Meaning. — Words  which   on 
their  face  appear  to  be  entirely  harmless,  may,  under  certain  circum- 
stances, convey  a  covert  meaning  wholly  different  from  the  ordinary 
and  natural  interpretation  usually  put  upon  them.      To  render  such 
words  actionable,  it  is  necessary  for  the  pleader  to  aver  that  the  author 
of  the  libel  intended  them  to'be  understood,  and  that  they  were  in  fact 


LIBEL    AND    SLANDER.  2  7 

understood  by  those  who  read  them  in  their  covert  sense.  (Maynard 
v.  Fireman's  Fund  Ins.  Co.,  34  Cal  48;  see,  also,  7  Barb.  260;  5  Abb. 
Pr.  498;  and  Carroll  v.  White,  33  Barb.  618.)  And  when  a  hidden 
defamatory  meaning  is  sought  to  be  attributed  to  words  in  themselves 
innocent,  and  on  their  face  containing  no  such  sense,  by  extrinsic  facts 
outside  and  independent  of  the  publication  itself,  the  knowledge  of  such 
facts  must  be  shown,  by  averment,  to  have  existed  in  the  breast  of  the 
defendant  at  the  time  of  the  publication.  Smith  v,  Ashley,  1 1  Met. 
367;  Dexter  v.  Spear,  4  Mass.  115. 


No.  334- 

i\\.    The   Same — By  an   Attorney  at  Law. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  the  plaintiff  was,   on  and  before  the   .... 

day  of ,  1 87 . ,  an  attorney  at  law  of  the  several 

courts  of  record  of  the  State  of ,  duly  admitted 

as  such  to  practice  therein,  as  such  attorney,  and  had 
practised,  and  still  continued  to  practise  as  such  attorney 
at  law,  in  the  several  courts  of  record  in  said  State  of 

,  and   had  always,  as  such  attorney  at  law, 

conducted    and    demeaned  himself  with   honesty   and 
fidelity,  and  had  never  been  guilty,  or  suspected  to  have 
been  guilty,  of  any  misconduct  or  malpractice,  in  his 
said  capacity  and  profession  of  an  attorney  at  law. 

II.  That    on    the  ....  day   of ,   187.,    at 

,  the    defendant    published    in    a   newspaper 

called  the ,  the  following    words   concerning 

the  said  plaintiff,  and  of  and  concerning  him  in  his  said 
capacity  and  profession  of  an  attorney  at  law:  \_setforth 

the  words  usecT\. 

• 

III.  That  the  defendant  meant  thereby  that   [slate 
innuendo\. 


28  FORMS    OF    COMPLAINTS. 

IV.  That  said  publication  was  false,  and  by  means 
thereof  the  plaintiff  hath  been  and  is  greatly  injured  and 
prejudiced  in  his  reputation  aforesaid,  and  has  also  lost 
and  been  deprived  of  great  gains  and  profits,  which 
would  otherwise  have  arisen  and  accrued  to  him  in  his 
said  profession  and  business. 

\Demand  of  Judgment.  \ 


No.  335. 

iv.    The   Same — by   a    Physician. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That    at   the    time    hereinafter     mentioned    the 
plaintiff  was  a  physician,  practising  as  such  at 

II.  That  on  the day  of ,  187.,  the 

defendant  published  in  a  newspaper  called  the , 

the  following  words  concerning  the  plaintiff  [set  forth 
the  words  used~\. 

III.  That  said  publication  was  false,  and  by  means 
thereof  the  plaintiff  was  injured  in  his  reputation,  and  in 
his  said  good  name  and  credit  as  a  physician,  and  in 
his  practice  as  such. 

\Demand  of  Judgment^ 


LIBEL   AND    SLANDER.  2  9 

No.  336. 

v.   For  Libel — Charge  of  Dishonesty,  etc.,  in  Business. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That    at   the  times    hereinafter    mentioned,  the 
plaintiff  was  a  corporation  existing  by  or  under  the  laws 
of  this  State,  was  engaged  in  business   in  the  City  of 
,  as  a  banker  and  stock  broker. 

II.  That  the  business  of  this  plaintiff  as  a 

has  always  depended  largely  on  the  good  reputation 
and  credit  of  this  plaintiff,  and  on   the   trust  reposed 
in  it,  and  by  their  shareholders  and  the  public,  in  con- 
sequence thereof. 

III.  That  the  defendant  was,  at  the  times  hereinafter 

mentioned,  the  publisher  and  proprietor  of  the , 

a  newspaper  published  in  the  City  of 

IV.  That  the  defendant,  well  knowing  the  premises, 

did,  on  the  ....  day  of ,  187 . ,  compose  and 

publish  in  said    newspaper,   concerning    the    plaintiff, 
and  concerning  the  premises,  the  false  and  defamatory 
matter  following,  to  wit:   [here  insert  words  of  libel, 
innuendoes,  etc.~\ 

IX.  That  by  reason  of  the  premises  the  plaintiff  has 
been  injured  in  its  reputation  and  credit,  to  its  damage 
dollars. 

[Demand  of  Judgment. ~\ 


41.     Corporations — Special     Damage. —  Incorporated 
panics  established  for  the  purpose  of  transacting  business,  e.g., 


corn- 
banks, 


3O  FORMS    OF     COMPLAINTS. 

may  maintain  actions  for  libel,  the  same  as  individuals,  for.  words 
affecting  their  business  or  property,  and  without  alleging  special  damages. 
Shoe  and  Leather  Bank  v.  Thompson,  23  How.Pr.  253. 


No.  337. 

vi.  For  Charge  of  Crime —  Words  not  Libelous  on  their  Face. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That    at    the   time   hereinafter   mentioned,    the 
[dwelling  house]   of  the  defendant  had  been   burned 
down,  and  it  was  suspected  that  it  had  been  feloniously 
set  on  fire. 

II.  That    on    the  ....  day    of ,  187 . ,    at 

,  the  defendant  published  in  a  newspaper  called 

the    ,  the    following    words    concerning    the 

plaintiff:    "  One    A.  B.    kindled   the   fire,    and    I    can 
prove  it." 

III.  That    the  defendant    meant    thereby  that  the 
plaintiff  had  feloniously  set  fire  to  said  house. 

IV.  That  the  said  publication  was  false. 

[Demand  of  Judgment.] 

No.  33S. 

vii.     For  Accusing  Plaintiff  of  Perjuryin  his  Answer  to  a  Complaint. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  before  the  committing  of  the  grievances 
hereinafter  mentioned,  the  plaintiff  had  filed  his  answer 
in  a  certain  action  then  pending  against  him  in  the  Dis- 


LIBEL    AND    SLANDER.  3! 

trict  Court  of  the Judicial  District  of  the  State 

of ,  wherein  the  defendant  herein  was  plaintiff; 

and  which  said  answer  was  verified  by  this  plaintiff. 

II.  That  on  the day  of ,  187 .,  at 

,  the  defendant,  well  knowing  the  premises, 

published,  and  caused  and  procured  to  be  published,  in 

a   newspaper    called     the    ,    concerning    the 

plaintiff  and  his  said  answer,  the  following  words :  [here 
state  the  libelous  matter\ — and  in  a  certain  other  part 
of  the  said  libel,  the  following  words  :  \liere  state  libel- 
ous matter\. 

III.  That  said  publication  was  false. 

[Demand  of  Judgment.  \ 

No.  339. 

viii.    For    Composing   a   Libel   not    Directly   Accusing   the  Plaintiff 

of  Perjury. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  before  the  committing  of  the  grievances  by 
the  defendant  hereinafter  mentioned,  a  certain  action 

had  been  pending  in  the  District  Court  of  the 

Judicial  District  of  the  State  of  ...-.....,  wherein  one 
A.  B.  was   plaintiff  and    one  C.  D.  was  defendant,  and 
which  action  had  been  then  lately  tried  in  said   Court, 
and  on  such  trial  the  plaintiff  herein  was  examined  on 
oath,  and  had  given  his  evidence  as  a  witness  in  behalf 
of  the  said  A.  B. 

II.  That  on  the day  of ,  187 .,  at 

,  the   defendant    published    in    a   newspaper 

called  the ,  the  following  words  concerning 


32  FORMS    OF     COMPLAINTS. 

the  plaintiff  and  the  said  action,  and  concerning  the  evi- 
dence given  by  the  said  plaintiff  upon  the  said  trial  as 
such  witness,  that  is  to  say:  "He,"  (meaning  the 
plaintiff)  "was  forsworn  on  the  trial"  (meaning  the  said 
trial),  and  that  he,  the  said  plaintiff,  in  giving  his  evidence 
as  such  witness  on  said  trial,  had  committed  willful  and 
corrupt  perjury. 

II.    That  said  publication  was  false. 
[Demand  of  Judgment '.] 

JVo.  340. 

ix.   For  a  Libel  not  Directly  Accusing  the  Plaintiff  of  Larceny. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  before  the    committing   of    the   grievances 
hereinafter  mentioned,  a  certain  horse  of  the  defend- 
ant had  been  feloniously  stolen  by  some  person  or  per- 
sons \pr  state  that  the  defendant  "was  possessed  of  a 
horse,  and  had  asserted  that  his  horse  had  been  feloni- 
ously stolen,"  or  "it  had  been  asserted  that  his  said 
horse  had  been  feloniously  stolen."] 

II.  That  on  the day  of ,    187.,   at 

,  the  defendant,  well  knowing  the  premises, 

published  in    a   newspaper    called   the    ,    the 

following  words  concerning  the  plaintiff  and  the  said 
horse:  "He  is  the  person  who  took  my  horse  from 
the  field." 

III.  That  defendant  meant  thereby  that  the  plaintiff 
had  feloniously  stolen  his  said  horse. 

IV.  That  the  said  publication  was  false. 

[Demand  of  Judgment '."] 


LIBEL   AND    SLANDER.  33 

JVo.  341. 

x.   For  Libel  by  Signs. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

That  on  the  ....  day  of ,  1 87 . ,  at , 

the  defendant,  contriving  to  injure  the  plaintiff  in  his 
reputation,  and  to  bring  him  into  public  contempt,  dis- 
grace, and  ridicule,  did,  in  the  public  street  of  said 

,  wrongfully  and  maliciously  make,  and  cause 

to  be  made,  an  effigy  or  figure  intended  to  represent 
the  person  of  the  plaintiff,  and  hung  up  and  caused  to 
be  hung  up  the  said  effigy,  in  the  view  of  the  neighbors 
of  the  plaintiff  and  of  the  public  then  and  there  assem- 
bled, by  means  of  which  the  plaintiff  has  been  greatly 
injured  in  his  reputation. 

[Demand  of  Judgment.] 

Note. — A  caricature  may  be  libelous.     See  Viele  v.  Gray,  18  How. 
Pr.  550;  10  Abb.  Pr.  i. 

JVo.  342. 

\.    For  Slander — The   Words   being  Actionable  in  Themselves. 

[TITLE.]  . 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,    187.,   at 

,  the  defendant  spoke,  in  the  hearing  of  A.  B. 

[or  sundry  persons'],  the  following  words  concerning  the 
plaintiff :  ["  He  is  a  thief."] 

II.  That  the  said  words  were  false. 

[Demand  of  Judgment.] 
3 


34  FORMS    OF     COMPLAINTS. 

1.  Statement  of  Action. — By  the  common  law,  actions  of  tort 
die  with  the  person,  and  this  rule  applies  to  actions  for  slander  and 
libel,  except  in  those  states  where  a  different  rule  is  prescribed  by  the 
statute.     Towns hend  on  Slander  and  Libel,  389;  see  i    W.  Saund.  316; 
5  Cush.  543,  544;    Waif  or  d  on  Parties,  1,392,  1,449. 

2.  Ambiguous    Words. — Where    words    are    ambiguous    and 
uncertain  in  their  meaning,  the  complaint  must  allege  such  circum- 
stances as  will  show  that  they  were  uttered  with  a  slanderous  meaning. 
Pike  v.  Van  Wormer,  5  How.  Pr.  jyi;  6  Id.  99. 

3.  Averments  in  Complaint. — The  New  York  Code  has  changed 
the  common  law  rule  of  pleading  in  actions  of  slander  in  one  particular: 
that  is,  although  it  may  be  uncertain  to  whom  the  words  were  intended 
to  apply,  it  is  no  longer  necessary  to  insert  in  the  complaint  any  aver- 
ments showing  they  were  intended  to  apply  to  the  plaintiff.     (Pike  v. 
Van  Wormer,  6  How.  Pr.  99.)     A  complaint  which  avers  that  defend- 
ant spoke  certain  words  of  and  concerning  the  plaintiff,  and  setting 
forth  the  words,  which  appear   actionable  per  se,  sufficiently  states  a 
cause  of  action.     Malone  v.  Stilwell,  15  Abb.  Pr.  442. 

4.  Chastity. — Ordinarily,  and  in  the  absence  of  any  statutory  pro- 
vision, words  published  orally  charging  a  woman  with  want  of  chastity 
are  not  actionable  per  se.     (Townshend  on  Slan.  and  Lib.   175,  etseq.) 
Want   of  chastity,   special   damage   being   averred,  as  to   unmarried 
female,  (Fuller  v.  Fenner,  16  Barb.  333.)    As  against  a  man,  (Ter- 
williger  v.  Wands,   17  N.F.   54.)     Or  a  married  woman,  Wilson  v. 
Goit,    17  N.F.  442;    Olmstead  v.  Brown,   12  Barb.  657;   Klein  v. 
Hentz,  2  Duer.  633. 

5.  Construction. — In  a  declaration  in  slander,  the  words  laid  as 
the  slanderous  charge  will  be  understood  by  the  Court  in  their  natural 
and  popular  sense.     Tuttle  v.  Bishop,  30  Conn.  80. 

6.  Continuando. — In  complaint  for  slander,  the  words  spoken 
should  not  be  alleged  with  a  continuando.     Slanderous  words  spoken 
at  one  time  constitute  one  cause  of  action.     The  same  or  other  slan- 
derous words  spoken  at  other  times  constitute  other  causes  of  action,  but 
if  relied  on  they  should  be  separately  pleaded,  in  separate  paragraphs. 
Swainey  v.  Nave,  32  Ind.  178. 

7.  Counts   in  Complaint. — It   is  actionable  to   include  in  the 
same  declaration  divers  distinct  words  of  slander  of  different  import. 


LIBEL   AND    SLANDER.  35 

(Hall  v.  Nees,  27  ///.  411.)  But  a  new  count  for  another  slander  can- 
not be  added  after  the  right  of  action  has  been  barred  by  the  Statute  of 
Limitations.  (Smith  v.  Smith,  45  Penn.  Stat.  R.  403.)  Under  the  old 
rule  the  plaintiff  was  held  to  strict  proof  of  the  words  as  charged  in  the 
declaration;  and  to  meet  this  rule,  it  was  necessary  to  state  the  words 
in  a  variety  of  counts,  adapted  to  the  evidence  relied  on.  See  Olm- 
stead  v.  Miller,  i  Wend.  506;  Aldrich  v.  Brown,  n  Id.  596;  Keenholts 
v.  Becker,  3  Den.  346;  Fox  v.  Venderbeck,  5  How.  Pr.  513;  Howard 
v.  Sexton,  ^N.Y.  157;  Rundell  v.  Butler,  7  Barb.  260. 

8.  Damages. — In  an  action  for  slander,  where  words  are  charged 
to  have  been  spoken  of  and  concerning  a  plaintiff,  as  a  clerk  or  trades- 
man, which  it  is  alleged  was  his  profession,  it  is  unnecessary  to  allege 
special  damages.     Butler  v.  Howes,  7  Cal.  87. 

9.  Disease. — With  respect  to  the  charge  of  having  a  disease,  it  is 
actionable  to  charge  having  certain  diseases,  but  it  has  been  held  not 
actionable  to  charge  one  with  having  had  such  diseases.     ( Townshend 
on  Stand,  and  Lib.  184.)     That  a  married  woman  has  (in  the  present 
tense)  a  venereal  disease.     (Williams  v.  Holdridge,   22   Barb.   396; 
Pike  v.  Van  Wormer,  5  How.  Pr.  171.)     That  a  man  has  a  venereal 
disease.     Hewitt  v.  Mason,  24  How.  Pr.  366. 

10.  Entire  Conversation. — A  count  of  a  petition  in  an  action 
for  slander,  which  sets  out  the  entire  conversation  in  which  the  slander 
was  spoken,  contains  only  one  cause  of  action,  although  the  conversa- 
tion consists  of  several  parts,  each  of  which  is  actionable.     (Craeraft  v. 
Cochran,  16  Iowa,  301.)     A  complaint  in  an  action  for  slander  which 
states  that  the  words  contained  therein  are  those  which  the  defendant 
spoke  concerning  the  plaintiff,  is  good,  although  the  style  of  such  words* 
is  unusual  for  a  conversation.     Hull  v.  Vreeland,  45  Barb.  534. 

11.  Essential  Averments. — In  an  action  for  slander,  it  should 
be  alleged  that  the  defendant  spoke  the  words  in  the  presence  and 
hearing  of  divers  persons.     To  allege  a  speaking  merely  is  not  suffi- 
cient.    (Style,  70;  Stark.  Slan.  360.)     But  in  Indiana,  by  statute,  it  is 
sufficient  merely  to  allege  the  speaking.     (Girard  v.  Risk,  n  Ind.  156.) 
Or  it  is  sufficient  to  allege,  "in  the  hearing  of  certain  persons,"  naming 
them;  (Burbank  v.  Horn,  39  Me.  233;)  or  of  certain  persons  named, 
and  divers  others,  not  naming  the  others.     Bradshaw  v.  Perdue,  12  Geo. 
510;  Ware  v.  Cartledge,  24  Ala.  622. 


36  FORMS    OF    COMPLAINTS. 

12.  Husband  and  Wife. — By  the  statute  of  New  York  of  1860 
and  1862,  a  married  woman  may  sue  alone  and  without  her  husband 
for  slander  or  libel;  and  so  in  Pennsylvania.     (Rangier  v.  Hummell, 

37  Penn.  130.)     But  that  a  wife  cannot  sue  her  husband  for  slander,  see 
(Freethy  v.  Freethy,  42  Barb.  641;  Tibbs  v.  Brown,  2   Grant's  Cas. 
(Penn.}   39;)  but  if  there  be   no  statutory  provision  to  govern  such 
actions,  the  action  should  be  brought  in  the  name  of  both  husband  and 
wife.     (Stark,  on  Slan.  349;  3  Binn.  555;  8  Sc.  N.  R.  26;  4  M.  &  W. 
5;  Sayre,  33;  3  Mod.  120;  4  Barr.  29.)     And  if  the  husband  dies,  the 
action  survives  to  the  wife;  but  if  the  wife  dies  before  verdict,  the 
action  abates.     (12  S.  &  R.  76;  Str.  977;  3  T.  R.  627;  see  Style,  138.) 
If  the  words  concerning  a  married  woman  are  actionable  because  of 
special  damage  to  the  husband,  the  husband  must  sue  alone;  (Cro.  J. 
538;  22  Barb.  396;  n  Cush.  10;  Bull,  N.  P.  7;  i  Nev.  &  M.  254;  4 
B.&Adol.  514;  i  Sid.  387;  Str.  977;  8  Mod.  26;  4  Barr.   29;  Stark. 
Slan.  351;  Fort.  377;  i  Lev.  140;  2  Duer,  633-;)  even  if  the  husband 
and  wife  live  apart  under  a  deed  of  separation.     (2  Hill,    309;  see 
Towns/lend  on  Slan.  and  Lib.   390.)     So,  for  a  charge  of  joint  larceny, 
the  husband  should  sue  alone.     (20  Penn.  159.)     Where  the  language 
published  concerns  both  husband  and  wife,  the  husband  may  sue  alone 
for  the  injury  to  him,  and  the  husband  and  wife  may  sue  jointly  for  the 
injury  to  the  wife.     (Id.)     For  a  publication  by  a  married  woman,  the 
action  must  be  against  her  and  her  husband.     5  Carr.  &  P .  484;  2 

Wils.  227;  Style.  349;  2  W.  Saund.  117. 

13.  Joinder  of  Actions. — A  cause  of  action  against   the  hus- 
band for  the  wrongful  act  of  his  wife  cannot  be  joined  with  a  cause  of 
action  against  him  for  his  own  wrongful  act.     Thus,  the  com  plaint  in 
an  action  against  husband  and  wife  stated  a  cause  of  action  for  slander- 
ous words  of  the  wife,  and  a  further  cause  of  action  for  slanderous 
words  of  the  husband :  Held,  that  the  two  causes  of  action  were  improp- 
erly joined.     Malone  v.  Stilwell,  15  Abb.  Pr.  421. 

14.  Jurisdiction. — The  Court  has  jurisdiction  in  an  action  of 
slander,  although  the  slanderous  words  were  spoken  in  another  state. 
Hull  v.  Vreeland,  42  Barb.  534. 

15.  Language  in  Part  Slanderous. — Where  the  complaint  sets 
out  language  used  on  a  single  occasion,  a  part  of  which  is  slanderous 
and  the  rest  is  not,  the  latter  portion  will  not  be  stricken  out  as  irrele- 
vant.    Though  it  may  not  be  necessary  to  allege  in  the  complaint  all 


LIBEL   AND    SLANDER.  37 

that  was  said  at  the  time,  it  is  proper  to  do  so.  (Deyo  v.  Brundage,  13 
How.  Pr.  221;  Root  v.  Lowndes,  6  Hill,  518.)  Plaintiff  was  not 
bound,  however,  to  prove  all  the  words  charged.  If  he  proved  some 
of  them,  and  those  proved  were  actionable,  it  was  enough.  (Loomis 
v.  Swick,  3  Wend.  205;  Purple  v.  Horton,  13  Id.  9;  compare,  also, 
Dioyt  v.  Tanner,  20  Id.  190;  Genet  v.  Mitchell,  7  Johns.  120.)  And 
different  sets  of  words  importing  the  same  charge,  and  laid  as  spoken 
at  the  same  time,  might,  under  the  former  practice,  be  included  in  the 
same  count.  (Rathbun  v.  Emigh,  6  Wend.  407;- Milligan  v.  Thorne, 
Id.  412.)  If  any  of  the  words  are  actionable,  judgment  must  be  for 
plaintiff.  Edds  v.  Waters,  4  Cranch  C.  Ct.  170. 

16.  Of  or  Concerning  Plaintiff — It  is  sufficient  to  aver  sub- 
stantially that  the  words  were  spoken  of  plaintiff.     An  express  averment 
of  the  fact  is  not  necessary.     Brown  v.  Lamberton.  2  Binn.  34;  Brashen 
v.  Shepherd,  Ky.  Dec.  294;   Nestle  v.  Van  Slyke,   2  Hill,  282;    but 
see  Titus  v.  Follett,  2  Hill,  318;  Tyler  v.  Tillottson,  2  Hill,  508;  Cave 
v.  Shelor,  2  Munf.  193;  Harper  v.  Delp,  3  Ind.  225;  Rex  v.  Marsden, 
4  M.  6*  S.  164;  Baldwin  v.  Hildreth,  14  Gray  (Mass.)  221. 

17.  Place  and  Time. — The  place   (n   East.   226)   or  time  of 
speaking  the  words  (22  Barb.  87;  29  ///.  115)  are  not  material;  but  it 
must  be  prior  to  the  commencement  of  the  action.     Taylor  v.  Sur- 
gingger,  2  Rep.  Con.  Ct.  3.67. 

18.  Presence  and  Hearing. — The  words  used  must  be  alleged  as 
having  been  spoken  of  and  concerning  the  plaintiff,  in  the  presence  and 
hearing  of  some  per  son  or  persons.     Anonymous,  3  How.Pr.  406;  Wood 
v.  Gilchrist,  i  Code  R.  117.     But  plaintiff  may  amend  on  the  trial,  if 
defendant  is  not  misled.     Id. 

19.  Presence  and  Hearing.— How  Alleged. — It  is  a  sufficient 
allegation,  in  a  complaint  in  an  action  for  slander,  to   show  that  the 
words  were  spoken  in  the  presence  and  hearing  of  some  person  or 
persons;  to  state  that  in  certain  conversations  or  discussions  defendant 
did  publish,  declare,  etc.,  as  these  words  sufficiently  imply  the  presence 
of  hearers,  and  indicate  that  the  declarations  were  public  and  notorious. 
Kurd  v.  Moore,  Oregon  Rep.  1866,  p.  65. 

20.  Presumption  of  Malice. — Where  the  occasion  upon  which 
the  words  for  which  an  action  of  slander  is  brought   were   spoken 
repels  any  presumption  of  malice,  and  proof  of  it  is  necessary  to  main- 


.    38  FORMS    OF    COMPLAINTS. 

tian  the  action,  it  is  sufficient  to  aver  that  they  were  spoken  maliciously, 
without  setting  forth  in  the  complaint  the  facts  and  circumstances 
which  show  the  existence  of  malice.  Viele  v.  Gray,  10  Abb.  Pr,  i. 

21.  Published. — "  Published  ex  vi termini"  imports  a  speaking  in 
the  presence  of  a  third  party.     (Dael  v.  Agan,  i  Code  R.   134.)     And 
this  averment  held  sufficient,  without  averring  specially  in  the  presence 
of  others,   (Burton  v.  Burton,  3  Iowa,  316.)     That  the  words  were 
spoken  would  be  sufficient,  if  accompanied  by  an  averment  implying 
publication  to  a  third  person.     Taylor  v.  How,  Cro.  Eliz.  86 1. 

22.  Several  Liability. — As  a  general  rule,  an  action  of  slander 
will   not   lie   against   two   persons;   as  every  speaker  must   be   sued 
separately.     (Malone  v.  Stillwell,   15  Abb.  Pr.  421;)  although  it  seems 
that  where  the  words  are  alleged  to  have  been  uttered  in  pursuance  of 
^conspiracy  between  two  or  more  defendants,  the  action  may  be  main- 
tained.    Chitty's  Pleading,  74;  Bui.  N.P.^;  Johns.  R.  32;  Forsyth  v. 
Edmiston,  2  Abb.  Pr.  430. 

23.  Slander    Defined. — Slander  is  the  imputation:    First,  Of 
some   temporal    offense,  for  which    the    party  may   be  indicted   and 
punished  in  the  temporal  courts.     Second,  Of  an  existing  contagious 
disorder,  tending  to   exclude  the  party  from  society.      Third,  Of  an 
unfitness  to  perform    an  office  or  employment  of  profit,  or  want  of 
integrity  in  an  office  of  honor.     Fourth,  Words  prejudicing  a  person  in 
his  lucrative  profession  or  trade.      Fifth,  Any  untrue  words  occasion- 
ing actual  damage;  (i  Milliard  on  Torts,  ch.  vii.  33;)  slander  being  an 
unwritten  or  unprinted  libel.    (Id.  32.)     It  is  also  defined  to  be  "the 
publishing  of  words  in  writing  or  by  speaking,  by  reason  of  which  the 
person  to  whom   they  relate  becomes  liable  to  suffer  some  corporal 
punishment  or  to  sustain  some  damage.      (Bac.  Abr.)     Slander  is  a 
private  wrong  or  tort,  cognizable  by  the  common  law,  the  remedy  for 
which  is  a  civil  action,  formerly  known  as  an  "  action  on  the  case  for 
words,"  and  now  as   "an  action,   or  the   action  of  or  for  slander." 
Townshend  on  Slander  and  Libel,  22. 

24.  Special  Damages. — The  loss  which  ensues  as  a  necessary 
consequence  is  termed  damage;  the  loss  which  ensues  as  a  natural  and 
proximate  consequence    is    termed   special   damages.      (Townshend  on 
Sland.  and  Lib.  148.)     Special  damages  consist  in  the  loss  of  marriage, 
loss  of  consortium  of  husband  and  wife,  loss  of  emoluments,  profits, 
customers,  employment,  or  gratuitous  hospitality,  or  by  being  subjected 


LIBEL   AND    SLANDER.  39 

to  any  other  inconvenience  or  annoyance  occasioning  or  involving  a 
pecuniary  loss.  (Id.  227.)  Mere  apprehension  of  loss  is  not  such 
special  damage  as  will  maintain  an  action.  (Id.  230;  Terwilliger  v. 
Wands,  17  K.Y.  54;  Wilson  v.  Goit,  Id.  442;  Alsop  v.  Alsop,  5  Hurl. 
6"  Nov.  534;  Bedell  v.  Powell,  13  Barb.  183.)  Mental  distress,  phys- 
ical illness  and  inability  to  labor,  occasioned  by  the  aspersion  of  words 
not  in  themselves  actionable,  are  no  grounds  for  special  damages. 
The  case  of  Bradt  v.  Towsley,  13  Wend.  253;  and  Fuller  v.  Fenner,  16 
Barb.  333;  overruled,  Tervvilliger  v.  Wands,  Court  of  Appeals,  Jan. 
1859;  Wilson  v.  Goit,  Id.;  see  Post,  Note  45. 

25.  Special  Damages  must  be  Alleged. — Special  damages 
or  those  damages  which  are   not  the   necessary  consequence  of  the 
language  complained  of,  must  be  specially  alleged  in  the  complaint. 
(Townshend  on  Slander   and  Lib.  428,  citing  various  authorities.)     A 
pecuniary  loss  must  be  shown  to   entitle  the  plaintiff  to  a  remedy. 
(Beach  v.  Ranney,  2  Hill,  309;  Herrick  v.  Lapham,  10  Johns.  291; 
Hallock  v.  Miller,  2  Barb.  630;  Hersh  v.  Ringwalt,  3  Yeates,  508.) 
The  objections  that  allegations  of  special  damage — e.  g.,  in  an  action 
for  slander — are  not  sufficiently  specific,  cannot  be  raised  by  demurrer, 
but  only  by  motion  to  make  more  specific.     Hewitt  v.  Mason,  24  How. 
Pr.  366. 

26.  Subsequent  Usage. — In  slander,  allegations  of  a  subsequent 
usage  of  the  words  complained  of  are  inadmissible.     A  repetition  may 
be  proved  without  such  allegation.  (Gray  v.  Nellis,  6  How  Pr.  290.)  If, 
after  a  recovery  has  been  had  in  an  action  for  slander  or  libel,  special 
damage  occurs,  no  action  can  be  maintained  therefor.     The  first  recov- 
ery is  a  bar  to  any  subsequent  action.     ( Townshend  on  Sland.  and  Lib. 
231;  Cooke  Defam.  24;  Fittler  v.  Veal,  Cas.  K.  B.  542.)      Ordinarily, 
the  repetition  of  language  by  another  than  the  first  publisher  is  not  a 
natural  consequence  of  the  first  publication,  and  therefore,  except  in 
certain  cases,  the  loss  resulting  from  such  repetition  does  not  constitute 
special  damage.     Townshend  on  Sland.  and  Lib.  233. 

27.  Specific  Words. — The  specific   words  in  which  slander  is 
conveyed  must  be  set  forth  in  the  petition  in  an  action  of  slander;  and 
it  is  not  sufficient  to  state  the  effect  of  the  words  merely,  or  to  allege 
that  the  defendant  charged  the  plaintiff  with  a  particular  crime.      Tay- 
lor v.  Moran,  4  Met.  (Ky.)  127. 


40  FORMS   OF    COMPLAINTS. 


JVo. 

ii.    For  Slander  —  Words  Spoken  in  a  Foreign  Language. 

[TITLE.] 

• 

The  plaintiff  complains,  and  alleges: 

I.  That  on  ....  day  of  ........  ,  1  87  .  ,  at  .......  , 

the  defendant,  in  the  presence  and  hearing  of  divers 
persons  who  understood  the  [German]  language,  spoke 
concerning  the  plaintiff  the  following  words  in  the  said 
[German]  language:   \_Here  set  forth  the  words  in  the 
German  or  foreign  language]  —  and  which  said  words 
signified,  and  were  understood  to  mean,  in  the  English 
language:    \_Here  set  forth  a  correct  translation  of  the 
words  in  English"]  —  and  the  said  German  words  were 
so  understood  by  the  said  persons  in  whose  presence 
and  hearing  they  were  spoken. 

II.  That    the   defendant    meant    thereby  \_set  forth 

innuendo~\  . 

III.  That  the  said  pnblication  was  false. 

IV.  That  in  consequence,  \_state  special  damage"]. 

[Demand  of  Judgment^ 


28.  Foreign  Tongue. — Where  the  slanderous  words  were  spoken 
in  a  foreign  tongue,  they  should  be  set  out  in  the  complaint  in  the 
original  language,  accompained  by  an  averment  of  their  meaning  in 
English,  and  it  should  also  be  alleged  that  the  persons  present  under- 
stood the  language  used.     (Keenholts  v.  Becker,  3  Den.  346;  Wor- 
month   v.  Cramer,  3  Wend.   395;    Lettman  v.   Ritz,   3   'Sandf.   734; 
Amann  v.  Damm,  8  C.  B.  (N.S.)   592.)     The  complaint  is,  however, 
amendable  in  this  respect,  upon  terms.     3  Sandf.  734. 

29.  Foreign  Words. — In  the  case  of  foreign  words,  it  must  be 
alleged   that  the   persons  present   understood  them.      (Wormuth   v. 
Cramer,  3  Wend.  394;  Stark.  Slan.  360;  Cro.  Eliz.  396;  Cro.  Jac.  39; 


LIBEL   AND    SLANDER.  41 

Cro.  Car.  199;  Nov,  57;  Golds.  119;  Zerg  v.  Ort,  3  Chand.  26; 
Amann  z>.  Damm,  8  Com.  B.  (N.S?)  597.)  But  in  Ohio,  it  is  held 
where  words  are  spoken  in  German  in  a  German  county,  it  will  be 
presumed  they  were  understood.  Bechtell  v.  Shatler,  Wright,  197. 


NO.  344- 

iii.    For  Slander — The   Words  not  being  Actionable  in  Themselves. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.    That  on  the  ....  day  of ,  1 87 . ,  at 


the  defendant  said  to  one  C.  D.,  concerning  the  plaintff: 
["  He  is  a  young  man  of  remarkably  easy  conscience."] 

II.  That  the  plaintiff  was  then  seeking  employment 
as  a  private  secretary  to  the  said  C.  D.,  and  the  defend- 
ant meant  by  the  said  words  that  the  plaintiff  was  not 
trustworthy  as  a  private  secretary. 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  the  said  words  [the  said 
C.  D.  refused  to  employ  the  plaintiff  as  private  secre- 
tary]. 

[Demand  of  Judgment.  \ 


30.  Innuendo. — Where  the  words  themselves  are  ambiguous,  and 
do  not  necessarily  impute  a  crime,  the  innuendo  cannot  enlarge  the 
meaning  of  the  words  spoken  beyond  the  averment  of  the  intention  by 
which  the  speaking  of  the  words  is  introduced.  (Weed  v.  Bibbins,  35 
Barb.  315;  and  see  Fiy  v.  Bennett,  5  Sandf.  54.)  As  to  the  office  of 
the  innuendo  as  employed  prior  to  the  Code,  consult  (Pelton  v.  Ward, 
3  Cat.  73;  Mott  v.  Comstock,  7  Cow.  C.  54;  Id.  658;  Tyler  v.  Tillotson, 

2  Hill,  507;  Butler  v.  Wood,  loHozv.  Pr.  222;  Tillotson  v.  Cheatham, 

3  Johns.  56;  Van  Vechten  v.  Hopkins,  5  Id.   211;  Lindsey  v.  Smith,' 
7  Id.  359;Vanghan  v.  Havens,  8  Id.  109;  Foy  v.  Bennett,  5  Sandf.  54; 
Andrews  v.  Woodmansee,  15  Wend.    232;  Cornelius  v.  Van  Slyck,  21 


42  FORMS    OF    COMPLAINTS. 

Id.  70;  Creswell  v.  Wood,  25  Id.  621.)  It  may  be  averred  that  the 
defendant,  by  means  of  the  words,  insinuated  and  meant  to  be  under- 
stood by  the  hearers  as  charging  the  plaintiff  with  the  crime  imputed. 
(Rundell  v.  Butler,  7  Barb.  260.)  But  if  the  words  are  unambiguous, 
such  averment  is  unnecessary.  (Walrath  v.  Nellis,  17  How.  Pr.  72.) 
And  where  the  innuendo  extends  the  meaning,  the  excess  in  meaning 
may  be  disregarded.  Carroll  v.  White,  33  Barb.  621;  Weed  v. 
Bibbins,  32  Id.  315. 

31.  Tenor,  Import,  and  Effect. — It  is  bad  pleading  to  aver  in 
the  complaint  that   defendant   uttered    "  certain  false   and  defamatory 
words  and  statements,  of  the  following   tenor   and  import,  and  to   the 
following  effect,  that  is   to  say,"    etc.,   though   an   allegation  of  their 
"substance"  might  be  sufficient.     (Forsyth  v.  Edmiston,  2  Abb.  Pr.  430; 
Maitland  v.  Goldney,  2  East,  427;     Cook   v.   Cox,  3  Man.  &  S.  no; 
Wardz>.  Clarke,  2  Johns.  10;  Finnerty  v.  Barker,  7  N.Y.  Leg.  Obs.  316.) 
Of  the  former  rules  of  pleading  and  evidence  in  actions  of  slander,  and 
their  operation,  Bisbey  v.  Shaw,  2  Kern.  67. 

32.  What  Words  are  Actionable. — Although  words  spoken  o  * 
a  party  do  not  necessarily  import  anything  injurious  in  themselves,  yet 
they  may  when  taken  in  connection  with  other  charges  made  against 
the  party  at   the  same  time.     The  whole  being  spoken  of  the  party  as 
a  merchant,  and   with  intent  to  affect  his   credit,  have  a   very  different 
meaning  from   their  ordinary  one,  and  so  taken  may  sustain  an  action. 
Beardsley  v.  Tappan  i  Blatch.  588. 

33.  Words    of   Disgrace. — Mere   words    of  disgrace,   unless 
written  and  published,  are  not  actionable.     Johnson  v.  Brown,  4  Cranch 

c.  a.  235. 

34.  Words  not  Per  Se  Slanderous. — In  actions  of  slander  for 
words  not  in  themselves  actionable,  the  right  to  recover  depends  upon 
the  question   whether  they  caused   special  damage,   and  the   special 
damage  must  be  fully  and  accurately  stated.     (Linden  v.  Graham,  i 
Duer,   672;  Hallock  v.  Miller,  2  Barb.  630;  Evans  v.  Harris,   i  H. 
&•  N.  251;  Hartley  v.  Herring,  8  T.  R.  130;  Harrison  v.  Pearce,  F.  & 
F.  570. 


LIBEL    AND    SLANDER.  43 

No.  345. 

iv.   For  Slander  Respecting  Plaintiff's  Trade. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  the  commission  of  the  griev- 
ances hereinafter  mentioned,  the  plaintiff  was  engaged 
in  business  as  merchant  [or  as  the  case  may  oe],  and 
had  always  maintained  a  good  reputation  and  credit  as 
such  [merchant]. 

II.  That    on    the  ....  day    of ,  187.,    the 

defendant,  in  the  presence  and  hearing  of  a  number  of 
persons,  maliciously,  and  with  intent  to  cause  it  to  be 
believed  that  the  plaintiff  kept  false  and  fraudulent  books 
of  account  in  his  said  business,  published  the  following 
words  concerning  this  plaintiff,  and  concerning  his  said 
business:   "  He  keeps  false  accounts,  and  I  can  prove  it" 
[or  state  the  words  complained  of~\. 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  said  words  a  number  of 
persons,  and  in  particular  [name  the  persons  referred  to~\, 
who  had  theretofore  been  accustomed  to  deal  with  the 
plaintiff  in  his  business  aforesaid,  ceased  to  deal  with 
him,  and  the  plaintiff  was  thereby  deprived  of  their  cus- 
tom, and  of  the  profits  which  he  would  otherwise  have 
made  by  a  continuance  of  such  dealing,  and  was  other- 
wise injured  in  his  reputation. 

\_Demand  of  Judgment, .] 


35.     Clerk    or    Tradesman. — In  an  action  for  slander,  where 
words  are  charged  to  have  been  spoken  of  and  concerning  a  defendant, 


44  FORMS    OF     COMPLAINTS. 

as  a  clerk  or  tradesman,  which  it  is  alleged  was  his  profession,  it  is 
unnecessary  to*  allege  special  damage.     Butler  v.  Howes,  7  Cal.  87. 

36.  Dishonesty. — Imputations   charging   dishonesty   against   an 
individual    in   connection   with   his   business    are  slanderous  per  se. 
Fowler  v.  Bowen,  30  N.Y.  20. 

37.  Ignorance    and    Want   of  Skill. — Gross   ignorance   and 
want  of  skill  in  his  profession,  as  against  a  physician.     Secor  v.  Harris, 
1 8  Barb.  425;  Carroll  v.  White,  33  Barb.  615. 

33.     Insolvency. — An  imputation  of  insolvency  against  a  petty 
trader  is  actionable.     Carpenter  v.  Dennis,  3  Sandf.  305. 

39.  Mechanical   Trade. — Words  imputing  to  a  mechanic  want 
of  skill  or  knowledge  in  his  craft,  are  actionable  per  se,  if  they  are  clearly 
shown  to  have  been  spoken  with  reference  to  the  plaintiffs  occupation, 
and  the  employment  is  one  requiring  peculiar  knowledge  and  skill. 
Fitzgerald  v.  Redfield,  51  Barb.  484;  S.C.,  36  How.  Pr.  97. 

40.  Physician. — Where  words  are  actionable  only  because  spoken 
of  the  plaintiff  in  his  business  or  profession,  averments  by  way  of  induce- 
ment and  colloquium  should  be   inserted.     If  a  physician  brings   an 
action  for  the  speaking  of  words  which  are  disgraceful  to  him  in  his 
profession,  he  must  aver  in  his  complaint  that  he  was  a  practising  phy- 
sician at  the  time  the  words  were  uttered,  and  that  they  were  spoken  of 
and  concerning  him  in  his  profession;    otherwise  it  is  demurrable. 
Carroll  v.  White,  33  Barb.  615. 

41.  Special  Averment — Discharge  from  Employ. — That 
by  reason,  etc.,  one  A.  B.,  who  had  theretofore  retained  plaintiff  in  the 
capacity   of ,  for   ,  afterwards,    on   ,  dis- 
charged the  plaintiff  from  his  employ. 

42.  Special  Averment — Refusal  to  Deal. — That  by  reason 
of  the  committing  of  the  said  grievances  by  the  defendant,  E.  F.,  G.  H. 
[etc.,  who  had  theretofore  dealt  with  the  plaintiff  in  his  trade  of  a 

,  by  him  then  and  since  carried  on],  afterwards  declined  to 

have  any  dealings  with  the  plaintiff. 

43.  Special    Averment — Refusal   to   Employ. — That  by 
reason  of  said  slander,  one  E.  F.,  who  before  was  about  to  employ,  and 
would  have  employed  the  plaintiff  as  his  servant  for  certain  wages, 


LIBEL   AND    SLANDER.  45 

afterwards,  and  before  the  commencement  of  this  suit,  refused  to 
employ  the  plaintiff  in  his  service ;  and  the  plaintiff  from  thence 
remained  out  of  employment  for months. 

44.  Special  Averment — Refusal  to  Retain  in  Employ .— 

That by  reason  [etc.] ,  one ,  who  otherwise  would 

have  retained  the  plaintiff  in  the  capacity  of ,  in  his  business 

of ,  for  wages,   afterwards  declined  so  to  do;  whereby  the 

plaintiff  lost  [etc.],  which  would  otherwise  have  accrued  to  him  [etc.] 

45.  Special  Averment — Refusal  to    Sell. — That  by  reason 
[etc.],  one  A.  B.,  who  would  otherwise  have  sold  to  the  plaintiff  certain 
goods,  to  wit:  [mention  goods],  on  credit,  afterwards  refused  so  to  do; 
whereby,  etc. 

46.  Special  Damages. — In  an   action   for  slander   for  words 
spoken  of  the  plaintiff  in  his  trade  or  business,  with  a  general  allegation 
of  loss  of  business,  jury  may  assess  damages  for  a  general  loss  or 
decrease  of  trade.     As  a  general  rule,  the  customers  so  lost  should  be 
named.     (Mayne  on  Damages,  278,  317;  2  Phil,  on  Ev.   248;  Feise 
v.  Linder,  3  B.  &  P.  372;  Tobias  v.  Harland,  4  Wend.  537;  Halleck 
v.  Miller,  2  Barb.  630.)     The  loss  of  a  customer  is  special  damage, 
although  if  the  dealing  had  taken  place,  the  plaintiff  would  have  lost 
by  it.     (Storey  v.  Challands,  8  C.  &  P.  234.)   For  cases  on  the  subject 
of  averring  special   damages  in  actions  of  slander,  see  (Hallock  v. 
Miller,   2  Barb.   630;  Keenholts  v.  Becker,   3  Den.   346;    Beach  v. 
Ranney,  2  Hill.  309;  Herrick  v.  Lapham,  10  Johns.  291;  Olmsted  v. 
Miller,   i   Wend.   506;  Sewall  v.  Catlin,  3  Id.  291;  Williams  v.  Hill, 
19  Id.  305;  Shipman  v.  Burrows,  i  Hall,  399;  Harcout  v.  Harrison, 
Id.  474.)     For  averments  of  special  damages,  see  Turner  v.  Foscall, 
2  Cranch  C.  Ct.    324;  see  Ante,  Note  24. 

No.  346. 

v.    For  Slander — Charging  a  Criminal  Offense. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.     That   at   the    time   of    the    commission    of    the 
grievances    hereinafter   mentioned,    the   plaintiff    sus- 


46  FORMS    OF     COMPLAINTS. 

tained  a  good  name  and  character  among-  his  neighbors 
and  acquaintances,  for  moral  worth  and  integrity,  and 
was  never  suspected  of  the  crime  of  forgery. 

II.  That  on  the    ....  day  of    ,  187 . ,  the 

defendant,  in  the  presence  and  hearing  of  a  number  of 
persons,   spoke   the   following   words   concerning   the 
plaintiff:   "  He  is  a  forger." 

III.  That  the  said  words  were  false. 

IV.  That  in    consequence  of  the  said   words   the 
plaintiff  has  been  greatly  injured  in  his  good  name  and 
character. 

\Demand  of  Judgment^ 


47.  Actionable  Language. — When  language  imputes  a  charge 
which,  if  true,  will  subject  the  party  charged  to  an  indictment  for  a 
crime  involving  moral  turpitude,  or  subject  him  to  an  infamous  punish- 
ment, it  is  actionable  per  se.  (Townshend  on  Slan.  and  Lib.  152.)  And 
this  rule  has  been  .followed  in  most  of  the  states.  (See  Brooker  v.  Cof- 
fin, 5  Johns.  188;  Young  v.  Miller,  3  Hill,  22:  Widrig  v.  Oyer,  13 
Johns.  124;  see,  also,  36  Barb.  438;  2  E.  D.  Smith,  388;  13 
Johns.  275;  17  Id.  219;  19  Id.  367;  5  Cow.  503;  6  Id.  88;  4  Barb. 
504;  9  Wend.  141;  23  Conn.  590;  3  Serg.  & R.  255;  \oSerg.  & R.  18; 
2  Harrison  (N.J.)  12;  i  Dutcher,  118;  4  Ga.  360;  3  Iowa,  316;  3 
Rich.  242;  3  Harr.  77;  Minor,  93,  138;  2  Slew.  &  Por.  395;  9  Por- 
tgr>  525>  J  Doug.  (Mich.}  67;  21  Penn.  522;  7  Vt.  439;  2  Halst.  426; 
I  Am.  Lead.  Cas.  113  ($d  Ed.)  In  some  of  the  states  it  seems  that 
all  oral  language  which  imputes  an  indictable  offense,  or  an  offense 
punishable  at  law,  is  actionable  per  se;  (Foe  v.  Grever,  3  Sneed,  666; 
Dunnell  v.  Fiske,  n  Metcf.  552;  Edgerley  v.  Swanie,  32  N.H.  481; 
Tenney  v.  Clement,  10  N.H.  57;)  or  an  indictable  offense;  (Kinney  v. 
Hosea,  3  Harr.  77;)  while  in  some  other  states,  to  be  actionable  they 
must  impute  not  only  an  indictable  offense,  but  such  for  which  corporal 
punishment  may  be  inflicted  as  the  immediate  penalty.  (Birch  v.  Ben- 
ton,  26  Miss.  153;  Billinger  v.  Wing,  7  Vt.  144.)  Words  which 
impute,  trespass,  assault,  battery,  and  the  like  are  not  actionable  per  se, 
and  yet  those  offenses  are  punishable  by  indictment.  Smith  v.  Smith, 


LIBEL    AND    SLANDER.  47 

2   Sneed,  478;  Dudley  v,  Horn,  21  Ala.  379;  Billings  v.  Wing,  7  Vt. 
144;  see  Note  49. 

48.  Words  Subjecting  Plaintiff  to  Criminal  Prosecu- 
tion.— Words  imputing  to  plaintiff  an  act  subjecting  him  to  a  criminal 
prosecution,  must  also  impute  moral  turpitude,  or  something  infamous 
or  disgraceful,  detracting  from  the  character  of  the  offender  as  a  man  of 
good  morals.  Quinn  v.  O'Hara,  2  E.  D.  Smith,  388;  Pike  v.  Van 
Wormer,  5  How.  Pr.  171;  Dias  v.  Short,  16  How.  Pr.  322;  Weed  v. 
Bibbins.  32  Barb.  315. 

No.  3 47. 

vi.    For    Slander — Words    Directly    Charging  a    Criminal    Offense — 

Several  Causes  of  Action. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....  day  of ,  1 87 . ,  at , 

the  defendant,  in  a  certain  discourse  which  he  had  with 
one  A.  B.,  in  the  presence  and  hearing  of  divers  per- 
sons, spoke  the  following  words  concerning  the  plaintiff: 
\_set  forth  the  words. ~\ 

II.  That   on   the   ....  day    of ,187.,    at 

,  the  defendant,  in  a  certain  other  discourse 

which  he  then  had  in  the  presence  and  hearing  of  divers 
other  persons,  spoke  concerning  the  plaintiff  the  follow- 
ing other  words  :   [set  forth  the  words.~\ 

III.  That  all  said  words  were  false. 

IV.  That  in  consequence  of  said  words,  etc. 

[Demand  of  Judgment^ 

• 

49.  Words  Charging  Offenses. — Words  charging  a  burning 
amounting  to  arson,  whether  by  common  law  or  by  statute,  are  action- 
able. So  of  a  general  charge  of  forgery.  So  of  a  general  charge  of 
being  a  murderer.  So  of  a  general  charge  of  being  a  thief.  So  of  a 


48  FORMS    OF    COMPLAINTS. 

charge  oflarcen",  or  a  taking  animo  furandi,  the  personal  property  of 
another.  Or  imputations  charging  a  person  with  being  a  receiver  of 
stolen  goods.  (Diasz'.  Short,  16  How.  Pr.  322.)  As  to  the  imputations 
of  stealing  goods,  when  and  where  not  slanderous  per  se,  and  to  what 
extent,  see  (Coleman  v.  Playstead,  36  Barb.  26;  Mayoeez'.  Fisk,  42  Barb. 
326;  Wilbur  v .  Ostrom,  i  Abb.  Pr.  (N.S.)  75.)  So  of  a  direct  charge  of 
perjury.  (See  Townshend  on  Slan  and  Lib.  165,  et  seq.;  and  the  cases 
there  cited.)  So  of  an  imputation  of  willful  perjury  in  a  suit  pending. 
Walrath  v.  Nellis,  17  How.  Pr.  94;  Baker  v.  Williams,  12  Barb.  529. 


No.  348. 

vii.    Slander — For    Words    Directly    Charging  Perjury. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,    187 .,   at 

,  the  defendant,  in  a  certain  discourse  which 

he  then  had  concerning  the  plaintiff,  in  the  presence  and 
hearing  of  divers  persons,  spoke  and  published  con- 
cerning the   plaintiff  the  words  following:   "You  per- 
jured yourself." 

II.  That  said  words  were  false. 

III.  That   in   consequence  of  the   said,  words   the 
plaintiff  is  greatly  injured  in  his  good  name  and  reputa- 
tion, and  has  been  rendered  liable  to  prosecution  for 
perjury. 

[Demand  of  Judgment.'] 


50.  Construction  of  Words. — In  an  action  for  slander,  in 
charging  the*  plaintiff  with  perjury,  if  it  appears  that  the  words  used  to 
express  the  charge  are  such,  in  the  sense  in  which  they  would  naturally 
be  understood,  as  to  convey  to  the  minds  of  those  to  whom  they  are 
addressed  the  impression  that  the  plaintiff  had  committed  perjury,  and 
that  the  defendant  intended  to  be  so  understood  by  those  who  heard  him, 
such  words  will  of  themselves  warrant  a  verdict  for  the  plaintiff,  in  case 


LIBEL   AND    SLANDER.  49 

the  jury  find  that  they  were  uttered  with  the  intention  above  stated,  and 
were  so  understood;  and  it  is  not  necessary  to  give  additional  evidence 
that  the  suit  was  in  a  court  of  competent  jurisdiction,  or  that  the 
plaintiff  swore  falsely,  with  a  corrupt  intent.  Kern  v.  Towsley,  51 
Barb  385. 

51.  Perjury  in  Another  State. — In  a  declaration  for  slander,  in 
charging  the  plaintiff  with  perjury  in  another  state,  it  must  be  averred 
that,  by  the  laws  of  such  other  state,  perjury  is  an  offense  to  which  is 
annexed  an  infamous  punishment.  (Sparrow  v.  Hayward,  8  Jones  L. 
(Ar.C.)  195.)  As  to  the  charge  of  false  swearing,  and  the  extent  of  the 
responsibility  of  the  defendant,  see  Wilbur  v.  Ostrum,  i  Abb.  Pr. 
(N.S.)  275. 

JVo.  349. 

viii.    Slander — For    Words  Charging  Perjury,  and  Containing  Special 

Inducements. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That    on    the  ....  day    of ,    187 . ,    at 

,  a  certain  action  was  pending  before  A.  B.,  a 

justice  of  the  peace  in  and  for  the  County  of , 

wherein  C.  D.  was  plaintiff,  and  E.  F.  was  defendant, 
and  in  which  suit  the  plaintiff  was  duly  sworn  before  the 
said  Justice,  and  gave  his  evidence  as  a  witness,  on  the 
trial  of  said  action,  and  testified  that  he  "  did  not  know 
that  one  M.  had  run  away;"  the  fact  whether  the  said 
M.  had  run  away  or  not  being  material  in  said  action. 

II.  That    on  the    ....  day  of ,187.,    at 

,  the  defendant,  in  a  discourse  which  he  had  in 

the  presence  and  hearing  oftsundry  persons,  spoke  and 
published  of  and  concerning  the  plaintiff,  and  concern- 
ing the  said  trial  and  testimony  of  the  plaintiff  as  a 
witness  in  relation  to  said  M.,  the  words  following:  "H 

swore  to  a  lie  at ,  in  the  suit  between  C.  D.  and 

4 


5O  FORMS    OF    COMPLAINTS. 

E.  F.;  he  said  he  did  not  know  that  M.  had  run  away, 
and  it  was  a  lie,  for  he  did  know  it;"  meaning  that  the 
plaintiff,  at  the  trial  of  the  action  aforesaid,  had,  as  a 
witness,  sworn  falsely,  and  committed  willful  and  cor- 
rupt perjury. 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  said  words,  etc.  [as  in 

preceding  form\ . 

• 
[Demand  of  Judgment '.] 


CHAPTER  IV. 

MALICIOUS   PROSECUTION. 

No.  350. 

i.    Common  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That   on   the    ....    day  of  ...-.....,    187.,    at 
. . '. ,  the  defendant  obtained  a  warrant  of  arrest 

from [a  police  justice  of  the  said  city,  or  as 

the  case  may  6e~],  on  a  charge  of ,  and  the 

plaintiff    was   arrested    thereon,   and    imprisoned    for 

days  [or  hours],  and  gave  bail  in  the  sum  of 

dollars  to  obtain  his  release. 

II.  That  in  so  doing  the  defendant  acted  maliciously 
and  without  probable  cause. 

III.  That  on  the day  of ,   187 .,  the 

said  Justice  dismissed  the  complaint  of  the  defendant, 


MALICIOUS    PROSECUTION.  51 

and  acquitted  the  plaintiff   [or  the  grand  jury  of  the 

County    of ignored    the    bill    against    the 

plaintiff,  or  otherwise  show  a  termination  favorable  to 
him\. 

IV.  That  many  persons,  whose  names  are  unknown 
to  the  plaintiff,  hearing  of  the  said  arrest,  and  supposing 
the  plaintiff  to  be  a  criminal,  have  ceased  to  do  business 
with  him  [or  that  in  consequence  of  the  said  arrest,  the 
plaintiff  lost  his  situation  as  clerk  to  one  A.  B.] 

[Demand  of  Judgment '.] 


1.  Causes  of  Action  not  Assignable. — Causes  of  action  aris- 
ing out  of  personal  torts  which  do  not  survive  to  the  personal  represent- 
atives of  a  party,  are  not  assignable.      (2  Kern.  262;  3  Kern.  322;  36 
Barb.  270;  i    Seld.  347;  Boyd  v.  Blankman,  29  Cal.  1 9 ;  Comegys  v. 
Vesse,  i  Pet.  193.)    So,  a  cause  of  action  for  a  malicious  prosecution  is 
not  assignable.     Lawrence  v.  Martin,  22  Cal.  173. 

2.  Conspiracy. — When  two  or  more  persons  are  sued  for  a  joint 
wrong  done,  it  may  be  necessary  to   prove  a  previous  combination 
between  them  in  order  to  secure  a  joint  recovery;  but  it  is  not  necessary 
to  aver  this  previous  combination  in  the  complaint,  and  if  averred,  it  is 
not  to  be  considered  as  of  the  gist  of  the  action.     (Herron  v.  Hughes, 
25    Cal.   560.)      An  allegation  that  the  defendants  have  fradulently 
confederated  and  conspired  together  for  the  purpose  of  harrassing  the 
plaintiff,  by  prosecuting  separate  suits  against  him  for  the   same  cause, 
and  that  such  suits  have  been  commenced,  and  are  prosecuted  in  pur- 
suance of  such  conspiracy,   is  not  sufficient  to  sustain  an  action,   or 
uphold  an  injunction,  when  the  defendants  claim  adversely  to  each 
other,  as  well  as  to  the  plaintiff,  and  no  direct  fraud  is  charged;  the 
plaintiff  merely  averring  his  belief  of    such   conspiracy,  because  the 
defendants  have  brought  separate  actions  for  the  same  cause,  and  by  the 
same  attorney.      Fraud,  in  such  a  case,  is  not  to  be  presumed ;  and  the 
conspiracy  should  be  distinctly  averred.    McHenry  v.  Hazard,  45  Barb. 
657. 

3.  Conspiracy,  Averments  in  Action  of. — In  an  action  for  a 


52  FORMS    OF    COMPLAINTS. 

conspiracy,  the  rule  is  to  allow  a  great  latitude  insetting  out  in  the  com- 
plaint the  particular  acts  from  which  the  conspiracy  is  to  be  inferred,  even 
so  far  as  to  allow  the  individual  acts  of  the  conspirators  to  be  averred. 
(Mussina  v.  Clark,  17  Abb.  Pr.  188.)  So  far  as  the  allegations  of  such 
acts  are  scandalous,  they  should  be  stricken  out,  unless  they  appear  to 
relate  to  the  foundation  of  the  plaintiffs  action.  Id. 

4.  Conviction. — The  fact   that   the  plaintiff  was   convicted  by 
a  jury  is  conclusive;  and,  if  apparent  in  the  complaint,  will  be  fatal 
to  the  suit  for  damages.     (Miller  v.  Deere,  2  Abb.  Pr.  i.)     Nor  will  a 
reversal,  for  error  of  law,  prevent  the  application  of  the  rule.     The 
only  exception  is  when  fraud  in  obtaining  a  conviction,  by  means  which 
prevented  the  plaintiff  from  setting  up  his  defense,  is  set  up  and  proved. 
In  a  complaint  of  this  nature,  an  averment*  of  matter  tending  to  show 
the  defendant's  motive  was  held  not  to  be  irrelevant,  in  (Brockleman 
v.  Brandt,   10  Abb.  Pr.   141.)     Nor  does   suffering  default  have  this 
effect,  where  probable  cause  existed  at  the  first.     Gordon  v.  Upham,  4 
E.  D.  Smith,  9. 

5.  Corporation. — An  action  for  malicious  prosecution  will   lie 
against  a  corporation,  if  it  has  power  to  authorize  the  act  done,  and  has 
done  so.     (Vance  v.  Erie  Railway  Co.,  3    Vroom,  334;  see  "  Assauli 
and  Battery"   Note  18.)     That  a  corporation  is  not  liable  to  such  an 
action,  but  may  be  sued  in  trespass  for  false  imprisonment,  see  Owsley 
v.  Montgomery  R.  R.  Co.,  37  Ala.  560;    see  Ante,  Vol.  i.  Note  30, 

P--275- 

6.  Damages. — The  jury  are  the  proper  judges  of  the  amount 
of  damages    to   be   allowed    in   actions    for   malicious  prosecution. 
Chapman  v.  Dodd,  10  Minn.  350. 

• 

7.  Defective  Complaint. — In  an  action  for  a  malicious  issuing 
and  prosecution  of  a  writ  of  attachment,  a  defect  if  any  in  the  complaint, 
in  not  alleging  that  it  was  issued  without  probable  cause,  and  stating 
instead  that  it  was  issued  out  of  wantonness,  is  cured  by  verdict,  when 
the  defect  was  not  pointed  out.     Levey  v.  Fargo,  i  Nev.  415. 

8.  Essential  Averments. — In  an  action  for  malicious  prosecu- 
tion, the  plaintiff  must  aver  and  must  prove  an  entire  want  of  probable 
cause  for  the  accusation,  and  actual  malice  of  the  defendant  in  pre- 
ferring it — that  is,  malice  in  fact,  as  distinguished  from  malice  in  law. 
(Bulkeley  v.  Smith,  2  Duer,  261;  n  L.  Q.  200;  Besson  v.  Southard,  6 


MALICIOUS    PROSECUTION.  53 

Seld.  236.)  Both  malice  and  want  of  probable  cause  are  essential,  and 
must  be  stated  and  proved;  also,  that  the  prosecution  is  at  an  end.  and 
how  it  was  concluded.  (Brown  v.  Chadsey,  39  Barb.  253;  Hull  v. 
Vreeland,  42  Barb.  543;  18  Abb.  Pr.  182;  McKown  v.  Hunter,  30 
N.Y.  625.)  An  averment  that  the  prosecution  was  without  probable 
cause  is  indispensable,  and  its  omission  fatal.  (Lohrfink  v.  Still,  10 
Md.  530.)  The  want  of  probable  cause  being  the  primary  question  in 
such  actions.  (Grant  v.  Moore,  29  Cal.  644.)  For,  though  malicious, 
the  defendant  is  not  liable  unless  there  be  a  want  of  probable  cause. 
(Payson  v.  Caswell,  9  Shopley,  212;  Wood  v.  Wier,  5  B.  Monr.  544 ;  Leidig 
v.  Rawson,  i  Scam.  372.)  The  necessity  of  the  concurrence  of  all  three 
of  the  above  elements,  i.e.,  want  of  probable  cause,  malice  in  fact,  and 
actual  determination  in  favor  of  the  plaintiff,  is  maintained  in  Van- 
derbilt  v.  Mathis,  5  Duer,  304;  see,  also,  as  to  pleading,  8  N.H.  157;  6 
Watts.  &  Serg.  336;  3  Hill.  195;  5  Black/.  428;  3  Monr.  208. 

9.  Facts  only  must  be  Alleged. — In  an  action  for  malicious 
prosecution,  only  the  substantial  matter  constituting  the  action,  that  is, 
facts,    and   not  the  evidence   of  facts,    need    be  set  out.     (Dreux  v. 
Domec,  18  Cal.  83.)     The  point  of  inquiry  in  such«an  action  is  whether 
there  was  in  fact  probable  cause  for  the  prosecution,  and  not  whether 
the  defendant  had  probable  cause  to  believe  there  was.     Hickman   v. 
Griffin,  6  Mo.  37. 

10.  Gist  of  Action. — The  action  lies  against  several  defendants, 
and   the  gist,   of  the  action   is  the  malicious  prosecution.     Dreux   v. 
Domec,  18  Cal.  83. 

11.  Indebtedness. — The  averment  of  no  indebtedness  may  be 
omitted,  and  a  suit  maintained  for  malicious  suing  out  an  attachment. 
Tomlinson  v.  Warner,  9  Ohio,  103. 

12.  Joint     Agency — Allegation    of. — In   suit  against  three 
defendants  for  malicious  prosecution,  the  complaint  averred  that  "de- 
fendants, contriving  and  maliciously  intending  to  injure  the  plaintiff," 
etc.,  falsely,   maliciously,  and  without  probable  cause,   procured  him 
k>  be  indicted  for  murder:  Held,  that  the  complaint  sufficiently  avers 
a  joint  agency  on  the  part  of  defendants  in  instituting  the  prosecution. 

Dreux  v.  Domec,  18  Cal.  83. 

13.  Malice. — Malice  and  falsehood  are  essential  ingredients  in  an 
action  for  malicious  prosecution.     (Platt^.  Niles,  I  Edm.  230.)     Malice, 


54  FORMS    OF    COMPLAINTS. 

as  well  as  want  of  probable  cause,  is  necessary  to  sustain  an  action  for 
malicious  prosecution.  (Riney  v.  Vanlandingham,  9  Mo.  807;  Fris- 
sell  v.  Relfe,  Id.  849.)  Malice,  in  its  legal  sense,  means  a  wrongful 
act,  done  intentionally,  without  just  cause  or  excuse.  (Maynard  v.  Fi. 
Fund  Ins.  Co.,  34  Cal.  48.)  Malice  cannot  be  presumed  in  a  prosecu- 
tion where  the  defendant  has  incurred  all  the  moral  guilt  of  the  charge, 
although  he  may  have  evaded  the  penalty  of  'the  law.  (Sears  v. 
Hathaway,  12  Cal.  277.)  Malice,  like  fraud,  is  to  be  inferred  from 
facts  and  circumstances.  (Lyon  v.  Hancock,  35  Cal.  376.)  A  petition 
which  omits  to  state  that  the  prosecution  was  malicious,  and  that  the 
plaintiff  was  acquitted,  is  insufficient.  (Mavey  v.  Kennett,  19  Mo.  551.) 
Public  policy  and  security  require  that  prosecutors  should  be  protected 
by  the  law  from  the  civil  liabilities,  except  in  those  cases  where  the 
two  elements  of  malice  in  the  prosecutor  and  want  of  probable  cause 
for  the  prosecution  both  occur.  (Porter  v.  Seal,  8  Cal.  217.)  If  one 
person  arrests  another  for  the  commission  of  a  crime,  under  the 
belief  that  the  person  arrested  has  committed  the  crime,  the  person 
making  the  arrest  cannot  be  said  to  act  maliciously,  although  he  may 
act  unlawfully.  Lyon  v.  Hancock,  35  Cal.  372. 

14.  Motive. — In  an  action  for  malicious  prosecution,  the  com- 
plaint may  aver  matter  tending  to  show  the  defendant's  motive — e.  g. , 
a  malicious  publication  by  him  procured  to  be  made  concerning  the 
prosecutor — such  as  would   be  proper  to  prove   at  the  trial  as  showing 
special  injury.     Such  averments  should  not  be  striken  out  on  motion, 
as  the  plaintiff  cannot  be  deemed  aggrieved  by  them.     Brockleman  v. 
Brandt,  10  Abb.  Pr.  141. 

15.  Names  of  Customers  Lost. — As  a  general  rule,  the  names 
of  persons  who  have  refused  to  deal  with  the  plaintiff  must  be  stated. 
(Linden  v.  Graham,  i  Duer,  672.)     But  if  it  is  in  the  nature  of  things 
impracticable  for  him  to  know  them,  he  may  prove  general  loss  of 
business.'  (Evans  v.  Harries,  i  Hurl.  &  N.  251.)     It  is  properly  a 
question  of  evidence,  which  cannot  be  settled  before  the  trial. 

16.  Probable  Cause. — Probable  cause  may  be  defined  as  a  sus- 
picion,  founded  upon  circumstances  sufficiently  strong  to  warrant  a 
reasonable  man  in  the  belief  that  the  charge  is  true.     (Porter  v.  Scale, 
8   Cal.  217;  Hall  v.  Hawkins,  5  Humph.   357;  Farris  v.  Starke,  3  B. 
Monr.  4;  3  Mo.  37;  9  Shepley,  212;  2  Id.  362;  n  Id.  566;  4  Dana, 
1 20.)     It  is  a  reasonable  ground  for  suspicion,  supported  by  circum- 
stances sufficiently  strong  in  themselves  to  warrant  a  cautious  man  in 


MALICIOUS    PROSECUTION.  55 

the  belief  that  the  person  accused  is  guilty  of  the  offense  charged. 
(Ross  v.  Innis,  35  ///.  487.)  The  question  of  probable  cause  does  not 
depend  upon  whether  an  offense  has  been  committed,  nor  upon  the  guilt 
or  innocence  of  the  accused,  but  upon  the  prosecutor's  belief  of  the 
truth  of  the  charge  made  by  him.  If  circumstances  are  shown  sufficient 
to  warrant  a  cautious  man  in  the  belief  of  the  truth  of  the  charge  he 
makes,  it  is  enough.  (Scanlan  v.  Cowley,  2  Hilt.  489.)  And  from  the 
want  of  probable  cause,  malice  may  be  inferred;  (Grant  v.  Moore,  29 
Cal.  644;)  and  is  a  mixed  question  of  law  and  fact.  (Id.}  It  is  a 
question  for  the  Court,  but  the  jury  must  decide  upon  the  facts.  Brant 
v.  Higgins,  10  Mo.  728. 

17.  Probable  Cause,  when  it  Exists. — If  the  defendant  had 
a  cause  of  action  in  the  case  alleged,  although  for  a  much  less  amount 
than  claimed,  there  was  probable  cause,  and  the  Court  should  grant  a 
nonsuit.     (Grant  v.  Moore,  29  Cal.  644.)     So,  a  judgment  against  the 
plaintiff  after  trial  on  the  merits,  is  sufficient  evidence  of  probable  cause, 
though  subsequently  reversed — not  however  conclusive,  if  impeached  for 
fraud.     (Palmer  v.  Avery,  44  Barb.  400.)     Where  two  actions  have 
been  abandoned,  by  the  plaintiffs  failure  to  appear  at  the  adjourned 
day,  and  a  new  action  has  been  commenced  before  another  justice  for 
the  same  demand,  which  is  still  pending,  the  litigation  is  not  terminated, 
and  want  of  probable  cause  cannot  be  inferred  solely  from  the  discon- 
tinuance of  the  former  suits.     (Palmer  v.  Avery,  41   Barb.  490.)     A 
committal  to  await  the   action  of  the  grand  jury  is  not   conclusive 
evidence  of  probable  cause.     Haupt  v.  Pohlman,  16  Abb.  Pr.  301. 

18.  Privileged  Charges. — As  to  the  remedy  by  action  for  mali- 
cious prosecution,  for  false  and  malicious  charges  preferred  in  legal 
proceedings  and  deemed  privileged  from  an  action  for  defamation,  see 
Perkins  v.  Mitchell,  31  Barb.  461. 

18.  Special  Damages. — Expenses  of  counsel,  made  necessary 
by  a  malicious  prosecution,  are  to  be  specially  alleged.  Strand  v. 
Whitehead,  12  Wend.  64. 

20.  Vigilance    Committee. — For  a   complaint   in   an   action 
against  a  vigilance  committee,  see  Moloney  v.  Dows,  2  Hilt.  247. 

21.  What  must  be  Shown. — To  sustain  an  action  for  mali- 
cious   prosecution,   the    plaintiff    must   show   affirmatively    that    the 
prosecution  was  malicious,  and  without  probable  cause,  both  concurring. 
Cook  v.  Walker,  30  Ga.  519. 


56  FORMS    OF    COMPLAINTS. 

22.  When    Action    will    Lie. — An  action  for  a  malicious 
prosecution  will   lie  where  an  affidavit  for  a  search  warrant  is  made 
before  a  justice,  maliciously,  and  without  probable  cause,  although  the 
magistrate  refuse  to  issue  the  warrant.     Miller  v.  Brown,  3  Mo.  127. 

23.  When  Action  -will  not  Lie. — Such  an  action  does  not 
lie   where  the  alleged  malicious  suit  was  founded  on  a  just  claim, 
although  such  claim  was   smaller   than  that  for  which  the  suit  was 
brought,  when  it  does  not  appear  that  property  was  attached  to  a  greater 
value  than  the  amount  of  such  claim.     Grant  v.  Moore,  29  Cal.  644. 


No.  351. 

ii.    The    Same — Fuller    Farm. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  _That   on    the  ....  day   of ,   187.,   at 

,  the  defendant  appeared  before ,  a 

justice  of  the  peace  of  said  County  [or  the  Police  Judge 
of  said  City],  and  charged  the  plaintiff,  before  said  Justice, 
with  having  [feloniously  stolen  a  certain of  the 

defendant] ;  and  procured  said  Justice  to  grant  a  war- 
rant for  the  arrest  of  the  plaintiff  upon  said  charge. 

II.  That  in  so  doing  the  defendant  acted  maliciously 
and  without  probable  cause. 

III.  That  the  said  Justice  issued  said  warrant  accord- 
ingly, and  the  plaintiff  was   arrested   and  imprisoned 

under  the  same  for [days  or  hours,  and  gave 

bail   in   the   sum   of   dollars   to    obtain    his 

release]. 

IV.  That  on  the  ....  day  of ,  the  plaintiff 

was  examined  before    the    said   Justice  for   the  said 
supposed  crime,  and  the  said  Justice  adjudged  him  not 
guilty,  and  fully  acquitted  him  of  the  same;    and  that 


MALICIOUS    PROSECUTION.  57 

since  that  time  the  defendant  has  not  further  prosecuted 
said  complaint,  but  has  abandoned  the  same. 

V.  That   the    said   charge   and  the   arrest    of   the 
plaintiff    thereunder    were     extensively    published    in 

several  public  newspapers,  among  others  the , 

as  the  plaintiff  believes,  through  the  procurement  of  the 
defendant. 

VI.  That  by  means  of  the  premises  the  plaintiff  was 
injured  in  his  person,  and  prevented  from  attending  to 

his  business,  and  paid dollars  costs,  counsel 

fees  in  defending  himself,  and    in  obtaining 

bail;  and  he  lost  his  situation  as  servant  of ; 

and  'many  persons,  whose  names  are  unknown  to  the 
plaintiff,  hearing  of  the  said  arrest,  refused  to  employ 
him. 

[Demand  of  Judgment.'] 


JVo.  352. 

Hi.    For  Procuring  Plaintiff  to  be  Indicted. 

[TrTLE.J 

The  plaintiff  complains,  and  alleges: 

I.  That    on  the day    of ,  187 .,   at 

,  the  defendant  caused  and  procured  the  said 

plaintiff  to  be  indicted  by  the  grand  jury,  then  and  there 

impanneled  and  sworn  by  the Court,  in  and 

for  the  County  of ,  to  inquire  of  crimes  within 

and  for  the  said  County,  and  prosecuted  and  caused  to 
be    prosecuted   the  said   indictment   against   the   said 
plaintiff. 

II.  That  in  so  doing  the  defendant  acted  maliciously 
and  without  probable  cause. 


58  FORMS   OF   COMPLAINTS. 

III.  That  afterwards,  to  wit :  at  the term 

of  the  said Court,  begun  and  held  on  the  .... 

day  of ,  187,,  at  the  Court  House  in ;  . , 

in  the  said  County  of ,  the  said  plaintiff  was  in 

due  manner  and  by  due  course  of  law,  acquitted  of  the 
said  premises  in  the  said  indictment  charged  upon  him, 

by  a  jury  of  the  said  County  of ;  whereupon 

it  was  then  and  there  adjudged  by  the  said  Court  that 
the  said  plaintiff  go  hence  thereof  without  day,  and  the 
said  plaintiff  was  then  and  there  discharged  of  and  from 
the  premises   in  said   indictment  specified,  as   by  the 
record  and  proceeding  thereof  remaining  in  said  Court 
appears. 

IV.  \_State  special  damages^ 

[Demand  of  Judgment, ,] 


24.     For  Procuring  Plaintiff  to  be  Indicted. — For  the  law 

on  this  subject,  see  i  Saund.  228;  9  East,  361;  i  T.  R.  493;  Ander- 
son v.  Buchanan,  Wright,  725;  Morris  v.  Scott,  21  Wend.  281;  Wil- 
liams v.  Hunter,  3  Hawks.  545. 


No.  353. 

iv.     The  Same — For  Obtaining  Indictment  on    which  a  Nolle  Prosequ 

was  Afterwards  Entered. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.   That    on   the day    of ,   187.,    at 

,  the  defendant  procured  C.  D.,  then  the  Dis- 
trict Attorney  in  and  for  the  County  of ,  in  this 

State,  to  issue  subpoenas  for  the  purpose  of  compelling 
and  procuring  the  attendance  of  witnesses,  among 
others,  one  A.  B.,  at  the Court,  held  on  the  day 


MALICIOUS    PROSECUTION.  59 

last  mentioned  at ,  in  said  County,  before  the 

grand  jury  and  persons  serving  as  grand  jurors  at  such 

term  of  the Court,  for  the  purpose  of  procuring 

an  indictment  to  be  found  against  the  plaintiff,  as  here- 
after more  fully  stated. 

II.  That  in  so  doing  the  defendant  acted  maliciously 
and  without  probable  cause,  and  intended  thereby  to 
injure  the  plaintiff  in  his  good  name  and  credit,  and  to 
bring  him  into  public  disgrace,  and  to  cause  him  to  be 
imprisoned,  and  to  impoverish  and  injure  him. 

III.  That  the  defendant,  at  said  term  of  the 

Court,  complained  of  the  plaintiff  before  the  grand  jury, 
and  falsely,  and  maliciously,  and  without  any  reasonable 
or  probable  cause  whatsoever,  charged  the  plaintiff  to 
the  grand  jury  with  having  [state  charge  preferred^. 

IV.  That  said  charge  was  and  is  wholly  false  and 
untrue,  which  the  defendant  then  and  at  all  times  since 
well  knew. 

V.  That  defendant  falsely  and  maliciously,  and  with- 
out probable  cause,  procured  the  grand  jury  aforesaid  to 

find  and  present  to  the  said Court  an  indictment 

against  the  plaintiff  for  said  alleged   [state  pretended 
charge~\. 

VI.  That  the  defendant  falsely  and  maliciously,  and 
without    probable   cause,    procured   a   bench   warrant, 
directed  to  the   Sheriff  or  any  constable   of  the  said 

County  of ,  for  the  arrest  of  the  plaintiff  upon 

the  aforesaid  indictment,  to  answer  the  charges  therein 
made  against  him  as  aforesaid,   to  be   issued   by  the 

Court  of  said  County  of ;  and  after 

wards,   on   or  about  the  ....  day  of ,   187 . , 

caused  the  plaintiff  to  be  arrested  and  to  be  kept  in 


6O  FORMS   OF    COMPLAINTS. 

custody,    restrained    of    his    liberty   for   the    space   of 

months,  and  to  give  bail  in  the  sum  of 

dollars  to  obtain  his  release. 

VII.  That  the  plaintiff  did  appear  at  the  said  term  of 

said Court,  ready  and  willing  to  then  and  there 

stand  trial  upon  the  aforesaid  indictment  against  him, 
pursuant  to  and  as  required  by  said  bond.     Whereupon 
the  aforesaid    District    Attorney,  after   consulting  and 
advising  with  the  defendant,  and  at  his  request,  and  by 
his  instructions,  did  then  and  there  move  the  said  Court 
that  the  plaintiff  be  discharged  out  of  custody,  and  be 
fully  discharged  and  acquitted  of  the  said  indictment 
and  of  the   supposed   offense  therein  charged  against 
him,  and  be  no  further  prosecuted  thereon;  whereupon 
the  said  Court,  having  heard  and  considered  all  that  the 
said  defendant  and  the  people,  by  the  aforesaid  District 
Attorney,  could  say  or  allege  against  the  plaintiff  touch- 
ing and  concerning  the  said  supposed  offense,  did  then 
and    there   adjudge,    order,    and    determine    that   the 
plaintiff  be  discharged  out  of  custody,  and  be  fully  dis- 
charged and  acquitted  .of  the  said  indictment,  and  be  not 
further  prosecuted  thereon. 

VIII.  That  the  said  indictment,  complaint,  and  prose- 
cution, are,  and    each  of  them   is    wholly  ended   and 
determined  in  favor  of  this  plaintiff. 

IX.  \_Special  damage,  if  any,  as  in  other  cases. ,] 

[Demand  of  Judgment.} 


25.  Dismissal. — An  immediate  dismissal  by  a  magistrate  of  a 
prosecution  when  commenced,  is,  it  would  seem,  prima  facie  proof  of 
the  want  of  probable  cause.  Gould  v.  Sherman,  10  Abb.  Pr.  441. 


MALICIOUS    PROSECUTION.  6 1 

26.  Nolle  Prosequi. — Entry  of  nolle  prosequi  was  held  insuffi- 
cient for  that  purpose.  Bacon  v.  Townsend,  2  C.R.  51 ;  Hall  v.  Fisher, 
20  Barb.  441. 


JVo.  354. 

iv.     The  Same — Where   Judgment  of  Acquittal  was  Rendered. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That    on   the    ....    day    of   ..» ,    187.,    at 

,  the  defendant  caused  and  procured  to  be  sued 

out   of  the  ........  Court,  in  and  for  the   County  of 

,  a  certain  writ  of   attachment,  in    a  certain 

action  then  and  there  pending,  wherein  the  said  A.  B. 
was   plaintiff,  and  the   plaintiff  herein   was   defendant, 
directed  to  the   Sheriff  of  said  County,   commanding 
said  Sheriff  \_here  state  substance  of  the  said  writ\,  and 
delivered,  the  same  to  the  said  Sheriff,  and  caused  and 
required  the  said  Sheriff  to   levy  said  writ  of  attach- 
ment on  the  store  of  goods,  wares,  and  merchandise  of 
the  said  plaintiff,  and  took  the  same  into  his  possession, 
and  the  said  defendant  afterward  applied  to  the  said 

Court,    [or  to    Hon.    C.  D.,    Judge    of   said 

Court],  and  obtained  an  order  from  said  Court  [or  Judge] 
for  the  sale  of  said  goods  and  merchandise,  and  caused 
said  Sheriff  to  sell  the  same  at  a  great  sacrifice. 

II.  That  in  so  doing  the  defendant  acted  maliciously 
and  without  probable  cause,  and  unjustly  contrived  and 
intended  to  injure  the  said  plaintiff  and  break  up  his 
business — he  the  said  plaintiff,  then  being  engaged  in 
the  business  of  a  merchant. 

III.  That  the  said  action  of  the  said  defendant  after- 


62  FORMS   OF    COMPLAINTS. 

ward  came  on  for  trial  at  the term  of  said 

Court,  187 . ,  and  was  tried,  and  a  verdict  and  judgment 
rendered  in  favor  of  the  said  plaintiff;  to  the  damage  of 
the  said  plaintiff dollars. 

[Demand  of  Judgment. ,] 


27.  Acquittal  Essential. — An  action  for  malicious  prosecution 
cannot  be  maintained  until  the  plaintiff  has  been  acquitted,  or  the 
prosecution  is  finally  terminated  in  his  favor.  The  determination  of 
the  prosecuting  officer  never  to  bring  the  indictment  to  trial,  for  the 
reason  that  he  deems  fhe  charge  entirely  unsupported,  is  not  sufficient. 
(Grant  v.  Moore,  29  Cal.  644;  Thomason  v.  Demotte,  9  Abb.  Pr. 
242;  1 8  How.  Pr.  529.)  The  plaintiff's  acquittal  must  be  alleged. 
An  allegation  that  he  has  been  discharged  is  not  sufficient.  (Morgan 
v.  Hughes,  2  T.R.  225;  Bacon  v.  Townsend,  2  Code  R.  51.)  It  is  not 
enough  to  aver  that  the  prosecuting  officer  declared  the  complaint 
frivolous,  and  refused  to  try  it.  (Thomason  v.  Demotte,  9  Abb.  Pr. 
242.)  The  rule  that  the  prosecution  must  have  terminated  favorably 
to  the  plaintiff,  does  not  apply  in  case  of  an  attachment  against  his 
property,  sued  out  in  his  absence,  and  which  he  had  no  opportunity  to 
defend.  Bump  v.  Betts,  19  Wend.  421. 


No.  355. 

vi.    For  Malicious  Arrest  in  a  Civil  Action. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.     That   on  the  ....  day  of ,   187.,  the 

defendant,  maliciously  intending  to  injure  the  plaintiff, 
made  affidavit,  and  procured  one  A.  B.  to  make  an  affi- 
davit, in  an  action  brought  against  this  plaintiff  by 

,  in  which  he  alleged  \setforth  the  grounds  of 

the  false  arres£\\    and  that  upon  said   affidavits   the 


MALICIOUS   PROSECUTION.  63 

defendant  caused  to  be  issued  an  order  of  arrest 
against  this  plaintiff,  under  which  the  plaintiff  was 

arrested  and  imprisoned  for  the  space  of ,  and 

compelled  to  give  bail  in  the  sum  of dollars. 

II.  That  in  so  doing  the  defendant  acted  maliciously 
and  without  probable  cause. 

III.  That  on  the    ....   day  of  .........  187 .,  said 

order  was  vacated  by  said  Court,  upon  the  ground  that 
\_set  forth  the  grounds  on  which  it  was  vacated~\. 

[Or  III.    That  on  the day  of ,  187., 

such  proceedings  were  had  in  such  action,  that  it  was 
finally  determined  in  favor  of  this  plaintiff,  and  judgment 
was  rendered  for  him  therein,] 

IV.  \_Special  Damage, .]     That  many  persons,  whose 
names  are  unknown  to  plaintiff,  hearing  of  the  arrest, 
etc.  [as  in  Form  No.  350]. 

[Demand  of  Judgment.} 


28.  Jurisdiction. — But  if  a  complaint  shows  that  the  arrest  was 
without  jurisdiction,  it  may  be  good  as  alleging  a  trespass,  without  aver- 
ring a  determination  in  favor  of  plaintiff.     Steel  v.  Williams,  18  Ind. 
(Kerr.)  161;  Searll  v.  McCracken,  16  How.  Pr.  262. 

29.  Malice. — If  one  person  arrests  another  for  the  commission  of 
a  crime,  under  the  belief  that  the  person  arrested  has  committed  the 
crime,  the  person  making  the  arrest  cannot  be  said  to  act  maliciously, 
although  he  may  act  unlawfully.     Lyon  v.  Hancock,  35  Cal.  373. 

• 

30.  Several    Causes    of   Action    United. — An  action    for 

malicious  arrest  and  prosecution,  or  either  of  them,  may  be  united  with 
an  action  for  either  an  injury  to  character  or  to  the  person;  (Pr.  Act, 
§  64;)  as  for  libel  or  slander.  Watson  v.  Hazzard,  3  Code  R.  218; 
Martin  v.  Mattison,  8  Abb.  Pr.  3. 

31.  When  Action  will  Lie. — Where  a  complaint  charged  a 


64  FORMS    OF    COMPLAINTS. 

crime,  and  the  prosecution  was  instituted  before  a  tribunal  having 
jurisdiction,  and  a  warrant  regular  upon  its  face  was  issued,  and  the 
defendant  was  arrested,  an  action  brought  by  him  for  malicious  prose- 
cution will  be  sustained,  although  the  complaint  was  not  signed  by  the 
complainant.  (Chapman  v.  Dodd,  10  Minn.  350.)  An  action  for 
malicious  prosecution  will  lie  against  a  creditor  who  effected  the  arrest 
and  imprisonment  of  his  debtor  by  alleging  that  the  demand  was  greater 
in  a/nount  than  it  truly  was,  so  as  to  hinder  the  debtor  from  getting 
bail.  It  is  true  that  in  order  to  sustain  an  action  for  malicious  prose- 
cution the  law  requires  that  the  proceedings  which  form  the  subject  of 
complaint  should  have  been  maliciously  instituted,  and  carried  on 
without  any  reasonable  or  probable  cause;  but  there  would  ordinarily 
be  but  little  difference  in  the  injury  produced  to  the  defendant,  whether 
the  unfounded  prosecution  was  carried  on  without  any  demand  what- 
ever to  justify  it  or  whether  it  was  coupled  with  a  claim  of  real  merit. 
Phil  on  Ev.  261;  3  Barn.  &  Cress.  139;  5  Barn.  6f  A.  313;  7  Eng. 
Com.  Law,  177;  i  Q.  &  B.  152;  «6  Eng.  L.  and  Eq.  R.  200;  4  Serg. 
6f  R.  19;  13  Id.  54;  Brown  v.  Mclntyre,  43  Barb.  344. 

32.  When  Action  -will  not  Lie. — An  action  in  a  case  for 
malicious  prosecution  will  not  lie  for  causing  a  person  to  be  arrested 
on  a  criminal  warrant,  charging  an  act  which  is  not  a  crime  but 
merely  a  trespass,  as  the  warrant  was  void,  and  the  proper  remedy  for 
an  arrest  on  such  a  warrant  is  trespass.  Kramer  v.  Lott,  50  Penn.  495. 


CHAPTER  V. 

FOR    PERSONAL    INJURY    CAUSED    BY    NEGLIGENCE. 

No.  356. 

\.    For  Injuries    Caused   by  Collision    of  Vehicle   Driven    bv    Servam. 
[TITLE.] 

The  plaintiff  complainsr  and  alleges: 

I.  That  on  the day  of ,  187 . ,  the 

plaintiff  was  driving  along  the  public  highway,  in  the 
City  of ,  in  a  carriage  drawn  by  one  horse. 

II.  That  the  defendant  was  then  the    owner  of  a 
wagon  and  two  horses,  which  were  then  being  driven 
along   said    highway,  in  the   possession  of   defendant 
[or  of  defendant's  servant\. 

III.  That  defendant  [or  that  said  servant]  so  care- 
lessly drove  and  managed  said  horses  and  wagon,  that 
by   reason   of  his    negligence  said   wagon  struck  the 
plaintiff's  carriage  and  overthrew  the  same,  and  threw 
the  plaintiff  out  of  his  carriage  upon  the   ground  [or 
describe  the  accident\,  whereby  the  plaintiff  was  bruised 

and  wounded,  and   was  for .  days  prevented 

from  attending  to  his  business,  and  was  compelled  to 

expend dollars  for   medical   attendance   and 

nursing,  and dollars  for  the  repair  of  his  said 

carriage. 

[  Demand  of  Judgment.  ]       * 

5 


66  FORMS    OF     COMPLAINTS. 

1.  Carrier's   Contract. — Passenger  carriers  bind  themselves  to 
carry  safely  those  whom  they  take  into  their  coaches  or  cars,  as  far  as 
human  care  and  foresight  will  go,  that  is,  for  the  utmost  care  and  dili- 
gence of  very  cautious  persons.     (Story  on  Bailments,  §  601.)     The 
words  "  care,  diligence,  and  foresight "  implies  a  relation  to  future  events. 
Wheaton  v.  N.  B.  and  M.  R.R.  Co.,  CaL  Sup.  C/.,  Oct.  T.,  1868. 

2.  Damages. — If  by  the  negligent  driving  of  defendant's  servant 
his  vehicle  runs  into  another  which  is  driven  with  due  care,  and  causes 
the  horse  of  the  latter  to  take  fright  and  run  away,  and  said  horse  runs 
into  the  plaintiff's  vehicle  and  injures  him  when  he  is  using  due  care, 
the  damage  is  not  too  remote  to  be  recovered.     (McDonald  v.  Snelling, 
14  AH.    290.)      In   a  case  of   simple  negligence  in  which    the   ele- 
ments of  fraud,  malice,  or  oppression  do  not  enter,  only  actual  damages 
can  be  recovered.     (Moody  v.  McDonald,  4  CaL  297;  Sedg.  on  Measure 
of  Dam.  39;  Keen  v.  Lazard,  8  La.  Rep.  0.  T.  390.)     In  actions  of  this 
character,  all  the  circumstances  in  the  case  may  be  taken  into  considera- 
tion in  making  up  the  estimate  of  damages,  and  the  jury  are  not  confined 
to  the  actual  damages  sustained,  and  where  the  stage  at  the  time  was 
driven  by  the  servant  or  agent,  the  principal  is  liable  only  for  simple 
negligence,  and  exemplary  damages  cannot  be  imposed.     (Citing  3 
Wheat.  546;  Wardrobe  v.  Cal.  Stage  Co.,  7  Cal.  1 20.)     The  only  damages 
which  can  be  recovered  in  such  actions  are  such  as  are  commensurate 
with  the  injury  alleged  to  have  been  sustained,  or  actual  damages.     2 
Greenl.  on  Ev.  §  253;  Whetmore  v.  Cutter,   i.Gall.   438;  Bateman  v. 
Goodyear,   12   Conn.  580;  Dain  v.  Wycoff,  3  Seld.   193;  Southard  v.. 
Rexford,  6  Cow.  264. 

3.  Defect  of  Vehicle. — A  carrier  of  passengers  for  hire  does 
not  warrant  that  the  carriage  in  which  the  passenger  travels  is  road- 
worthy.     He  is  bound  to  use  all  vigilance  to  insure  safety,  but  is  not 
liable  for  a  defect  which  could  not  be  detected,  and  which  arises  from 
no  fault  of  the  manufacture.     Redhead  v.  Medland  Railway  Co.,  L.  R. 
4  Q.  B.  379;  2  Q.  B.  412;  2  Am.  Law.  R.   107. 

4.  Inability  for  Negligence. — If  a  child  under  four  years  of 
age  is  injured  by  the  negligence  of  third  persons  in  the  street  of  a  city, 
traversed  constantly  by  cars  and  other  vehicles,  his  father  cannot  recover 
for  loss  of  service  if  he  has  knowingly  suffered  such  child  to  be  in  the 
street  unattended.     (Glassey  v.  Hestonville  R. R.   Co.,  57  Pmn.  172.) 
Otherwise  of  an  action  by  the  child  itself,  although  the  negligence  of  a 
volunteer  undertaking  to  interfere  for  the  child's  benefit  contributed  to 


PERSONAL    INJURY    BY    NEGLIGENCE.  67 

the  injury.  (North  Perm.  R.  R.  Co.  z>.  Mahoney,  57  Penn.  187.)  One 
who  sells  gunpowder  to  a  child  eight  years  old,  knowing  that  he  is 
unfit  to  be  trusted  with  it,  is  liable  if  the  child,  using  the  care  of  which 
he  is  capable,  explodes  it,  and  is  burned  by  the  same,  and  a  license  to 
sell  gunpowder  is  no  defense.  (Carter  v.  Towne,  98  Mass.  576.)  As 
to  what  constitutes  negligence,  see  Ante,  Vol.  i.,  p.  239,  Note  242. 

5.  Master  and  Servant — General  Doctrine. — The  general 
doctrine  maintained  that  the  master  of  employer  is  responsible  for  act  or 
omission  of  servant  of  employee  within  scope  of  his  employment  or 
authority.  (New  York  and  New  Haven  Railroad  Co.  v.  Schuyler,  34 
N.F.  30;  Chapman  v.  New  York  Central  Railroad  Co.,  33  Id.  569; 
Drew  v.  Sixth  Avenue  Railroad  Co.,  26  Id.  49;  Lannen  v.  Albany  Gas 
Light  Co.,  46  Barb.  264;  Carman  v.  Mayor  of  New  York,  14  Abb.  Pr. 
301;  Annette.  Foster,  i  Daly,  502;  Meyer  v.  Second  Avenue  Rail- 
road Co.,  8  Bosw.  305;  Merrick  v.  Brainard,  38  Barb.  574,  not 
affected  by  partial  reversal,  34  N.  Y.  208. )  One  whose  servant  negli- 
gently throws  a  keg  out  of  a  window  and  injures  a  person  passing 
through  a  passageway  below,  is  liable,  although  such  person  was  there 
only  by  license.  (Corrigan  v.  Union  Sugar  Refinery,  98  Mass.  577.) 
But  the  employer  held  not  responsible  for  willful  injury  committed  by 
employee,  (Garvey  v.  Dung,  30  Hmv.  Pr.  315.)  For  injury  by 
negligence,  both  employer  and  employee  may  be  sued  together. 
Phelps  v.  Wait,  30  N.Y.  78. 

No.  357. 

ii.     Against  Common  Carriers — For   Injuries    Caused   by  Overturning 

Stage  Coach. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That   on    the  ....  day.  of ,    187.,    the 

defendant    was   a   common    carrier    of  passengers  for 
hire  by  stage  coach  between and 

II.  That  on  that  day,. as  such  carrier^  he  received  the 

plaintiff  upon  his  coach,  to  be  carried  from 

to ,  for  the    sum  of dollars,   which 

was  then  and  there  paid  by  the  plaintiff  to  the  defendant. 


68  FORMS    OF     COMPLAINTS. 

III.    That  while  he  was  such  passenger  at 

[or  near  * ,  or  between   and ], 

the  said  coach  was,  by  and  through  the  carelessness 
and  negligence  of  the  said  defendant,  overturned  and 
thrown  down,  with  the  plaintiff  therein,  as  aforesaid,  by 
means  whereof  the  said  plaintiff  was  greatly  injured, 
and  one  of  the  legs  of  said  plaintiff  was  broken,  and 
fractured,  and  bruised?  and  the  said  plaintiff  was  other- 
wise greatly  injured,  wounded,  and  cut,  insomuch  that 
the  said  plaintiff  then  became  sick,  lame,  and  sore,  and 

so  continued  for  the  space  of months  thence 

next  ensuing,  and  was  during  all  that  time  prevented 
from  attending  to  his  business  and  carrying  on  the  same ; 
and  the  said  plaintiff  was  forced  to  expend,  and  did 
expend,  the  sum  of dollars  for  medical  attend- 
ance and  business. 

{Demand  of  Judgment. \ 


6.  Essential  Averments. — It  is  only  necessary   to  prove  the 
overturn  and  the  injuries  sustained.    The  presumption  of  law  is  that  the 
overturn  occurred  through  the  negligence  of  the  defendant.    Boyce  v. 
Cal.  Stage  Co.,  25  Cat.  460. 

7.  Form. — In  an  action  on  the  case  for  an  injury  sustained  by  the 
upsetting  of  a  stage  coach,  the  declaration  alleged  that  the  plaintiff,  at 
the  special  instance  and  request  of  the  defendants,  became  a  passenger 
in  a  certain  coach,  to  be  carried  safely,  and  for  certain  rewards  to  the 
defendants;  and  that  thereupon.it  was  their  duty  to  use  due  and  proper 
care  that  the  plaintiff  should  be  safely  conveyed.      The  breach  was 
well  assigned,  showing  the  neglect  and  consequent  injury  sustained. 
Held,  that  the  defect,  if  any,  was  cured  by  §  32  of  the  Judiciary  Act, 
which  provides  that  no  litigant  shall  lose  his  right  in  law  for  want  of 
form.    Stockton  v.  Bishop,  4  How.  U.S.  155;  see,  also,  Washington  i>. 
Ogden,  i  Black.  4150. 

8.  Material  Averments. — In  an  action  for  an  injury  sustained 


PERSONAL    INJURY    BY    NEGLIGENCE.  69 

by  the  oversetting  of  defendant's  stage  coach,  plaintiff  alleged  that  he 
paid  for  his  passage  the  sum  of  ten  dollars:  Held  to  be  a  material  allega- 
tion. Harris  v.  Rayner,  8  Pick.  541. 

9.  Overturning  Plaintiff's   Carriage. — A  case  for  personal 
injuries  caused  by  plaintiff's  horse  being  frightened  by  two  loud,  sudden 
and  sharp  whistles  from  defendant's  engine,  and  upsetting  his  carriage : 
Held,  that  whether  or  not  the  above  was  a  proper  signal  in  the  use  of 
ordinary  care  was  for  the  jury.     A  verdict  for  the  plaintiff  was  upheld. 
Hill  v.  Portland  R.R.  Co.,  55  Me.  438. 

10.  •  Paid  Fare. — Carriers  cannot  protect  themselves  from  liability 
for  gross  negligence,  by  contract.  (Illinois  Cent.  R.R.  Co.  v.  Adams,  42 
HI.  474;  see  Adams  Exp.  Co.  v.  Haynes,  Id.  89,  93.)    Otherwise  when 
the  passenger  is  carried  free.    Kinney  v.  Cent.  R.R.  Co,  3  Vroom,  407; 
but  see  Penn.  R.R.  Co.  v.  Butler,  57  Penn.  335. 

11.  Railroad   Company. — An  action  lies  against  a  city  railroad 
company  for  the  negligence  of  their  driver  in  respect  to  stopping  the 
car  and  assisting  young  and  infirm  persons  on.  Drew  v.  Smith  Avenue 
R.R.  Co.,  3  Keyes,  429. 

12.  Stock  Running   at    Large. — Plaintiff  was  driving  in  the 
highway,  using  due  care,  when  defendant's  hog  running  at  large,  contrary 
to  the  statute,  frightened  plaintiff's  horse,  and  his  minor  daughter  was  in- 
jured in  consequence.   Held,  that  defendant  was  liable,  although  he  did 
not  know  that  the  hog  was  at  large.     Jewett  v.  Gage,  55  Me.  538. 

13.  Who  Liable. — Where  one  owning  a  carriage  hires  horses  and 
driver  of  B.,  for  an  injury  resulting  from  the  carelessness  of  the  driver 
B.  alone  is  liable.      (Quarman  v.  Burnett,  6  M.  &  W.  497;   Rapson 
v.  Cubit,  9  Id.  709;    Hobbitttf.  N.  W.  R.R.  Co.,  4  Welsh,  Hurst.  & 
Gord.  254;  Allen  v.  Haywood,  7  Adol.  &  Ellis  (N.S.)  960.)     A  muni- 
cipal  corporation  is  liable   for   injuries  ensuing   from    neglect  of  its 
employees  or  officers.      (Loyd  v.  Mayor  of  N.Y.,  i  Seld.  369.)      The 
fact  that  the  driver  of  the  carriage  and  horses  was  their  owner/was  con- 
clusive in  establishing  that  the  relation  of  master  and  servant  did  not 
exist;  and  so  far  as  the  defendant's  liability  rested  upon  the  existence  of 
such  relation  he  was  not  responsible  for  the  injury  which  the  plaintiff 
received  through  the  negligence  of  the  driver.     Boniface  v.  Relyea,  5 
Abb.  Pr.  (N.S.)  259;   see,  further,  Ante,  Note  i,  at  the  head  of  this 
chapter. 


7O        .  FORMS    OF    COMPLAINTS. 

JVo.  358. 

iii.    Against  a  Railroad  for  Injuries  by  Collision. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That    on    the  ....  day    of ,    187.,  the 

defendant  was  a  corporation  duly  incorporated  under 
the  laws  of  this  State,  and  was  the  owner  of  a  certain 

railroad,   known    as   the Railroad,    together 

with  the  track,  rolling  stock,  and  other  appurtenances 
thereto  belonging;  and  was  a  common  carrier  of  pas- 
sengers   thereupon    for    hire,    between     and 

,  in  the  State  of 

II.  That  on  that  day  the  plaintiff  was  a  passenger 

in  one  of  the  cars  of  the  defendant  from  said 

to ,  for  the  sum  of dollars  paid   to 

the  defendant  by  the  plaintiff. 

III.  That  while  he  was  such  passenger,  at 

[or   near   the   station    of    ,    or  between    the 

stations  of and ],  a  collision  occurred 

on  the  said  railroad,  caused  by  the  negligence  of  the 
defendant  and  its  servants,  whereby  the  plaintiff  was  much 
injured  \_statethe  special  damage,  if  any\. 

IV.  That  the  defendant  and  its  servants,  in  managing 
said    cars  in  which  plaintiff  was  a  passenger,  were  so 
careless  and  negligent  that  it  was  unsafe  for  him  to 
remain  in  one  of  them;  and  that,  in  order  to  free  him- 
self from  the  danger,  he  was  obliged  to  leap  from  the 
car,  and  in  doing   so  was    injured  [state  injury  accord- 
ing to  the  fact}. 

[Demand  of  Judgment.  ] 


PERSONAL    INJURY    BY    NEGLIGENCE.  71 

14.  Degrees  of  Negligence. — Degrees  of  negligence  are  matters 
of  proof  and  not  of  averment;  and  a  general  allegation  of  negligence, 
want  of  care  and  skill,  etc.,  is  sufficient  in  an  action  for  injuries  caused 
by  such  negligence,  whether  the  defendant   is  liable  for   ordinary  or 
gross  negligence.     (Nolton  v.  Western  R.R.  Co.,  15  N.Y.  444.)     And 
an  averment  of  malice  does  not  vitiate  the  pleading.     Winterson  v. 
Eighth  Ave.  R.R.  Co.,  2  Hilt.  389;  and  see  Robinson  v.  Wheeler,  25 
N.Y.  252. 

15.  Diligence. — The  same  diligence  is  not  required  from  a  rail- 
road company  toward  a  stranger  as  toward  a  passenger.     The  care  re- 
quired is  that  which  experience  has  found  reasonable  and  necessary  to 
prevent  injury  to  others  in  like  cases.     (Baltimore  and  Ohio  R.R.  Co. 
v.  Breinig,  25  Md.  378;  see  Philadelphia  W.  and  B.  R.R.  Co.  v.  Kerr, 
Id.  521.)     A  railroad  company  is  not  liable  for  injuries  received  by  a 
passenger  while  voluntarily  and  unnecessarily  standing  on  the  platform 
of  a  car  in  motion  although  by  the  express  permission  of  the  conductor 
and  brakeman.     Hickey  v.  Boston  and  L.  R.R.  Co.,  14  All.  429. 

16.  General  Averment  of  Negligence. — Ordinarily  a  gen- 
eral averment  of  negligence  is  sufficient  to  admit  proof  of  the  special 
circumstances  constituting  it:    Thus,  in  an   action  against  a  railroad 
company  for  running  over  a  child,  evidence  is  admissible  under  such  a 
general  averment  that  there  were  no  suitable  brakes  or  guards  in  front 
of  the  car  where  the  driver  was  stationed.     Oldfield  v.  N.  Y.  and  Har- 
iem  R.R.  Co.,  14  N.Y.  310. 

17.  Negligence    Generally,  and    also   Specific   Acts. — 

Under  a  complaint  alleging  negligence  generally,  and  also  specifying 
particular  acts  of  negligence,  evidence  of  any  other  kinds  of  negligence 
is  admissible,  the  general  allegation  being  sufficient,  the  particular 
charges,  being  surplusage,  should  not  affect  the  reception  of  evidence. 
(Edgerton  v.  N.Y.  and  Harlem  R.R.  Co.,  35  Barb.  389.)  Negligence 
is  a  question  of  fact,  or  mixed  of  law  and  fact;  and  in  pleading  it  is 
only  necessary  to  aver  negligence  generally,  not  the  specific  facts  con- 
stituting the  negligence.  McCauley  v.  Davidson,  10  Minn.  418. 

18.  Particular  Facts. — The  complaint  in  an  action  against  a 
railroad  company,  for  running  over  a  person  with  an  engine,  need  not 
show  the  particular  facts  constituting  negligence  on  the  part  of  the  de- 
fendant, if  it  charges  such  negligence  in  a  general  way.  Such  complaint 
must  show  that  there  was  no  fault  on  the  part  of  the  person  run  over. 
Indianapolis  etc.  R.R.  Co.  v.  Keeley's  Adm'r,  23  Ind.  133. 


72  FORMS    OF     COMPLAINTS. 

19.  Several  Acts  of  Negligence. — If  the  plaintiff  would  rely 
on  several  acts  of  negligence  as  the  cause  of  one  injury,  he  may  allege 
all  the  acts  of  negligence  in  one  count,  and  aver  that  they  were  the 
cause;  and  if  he  prove  upon  the  trial  that  any  one  of  them  was  the 
cause,  his  complaint  is  sustained.     Dickens  v.  N.Y.  Central  R.R.  Co., 
13  How.  Pr.  228. 

20.  Sufficient   Averment   of  Negligence. — In  an  action 
against  a  railroad  company  for  injuries  caused  by  a  collision  with  its 
cars,  a  complaint  which  alleges  that  the  defendant,  with  carelessness 
and  with  gross  negligence,  caused  one  of  its  engines  to  run  upon  the 
track,  etc.,  sufficiently  charges  negligence.       Ohio  etc.  R.R.  Co.  v. 
Davis,  23  Ind.  553. 

21.  Without  the  Bounds  of  the  State. — An  action  cannot 
be  maintained  for  an  injury  occurring  without  the  bounds  of  the  State. 
Mahler  v.  Norwich  and  N.Y.  Transportation  Co.,  45  Barb.  226. 


Wo.  359. 

iv.    The  Same — By  Car  Running  off  Track. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on   the  ....  day  of ,    187 . ,    the 

defendant  was  a  common  carrier  of  passengers,  by  rail- 
road, between and 

II.  That  on  that  day  the  plaintiff  was  a  passenger  in 
one  of  the  carriages  of  the  defendant  on  said  road. 

III.  That  while  he  was  such  passenger,  at , 

the  said  defendant,  not  regarding  its  duty  in  that  behalf, 
did,  by  its  servants  and  agents,  so  carelessly,  negligently, 
and  unskillfully  conduct  the  running  of  said  cars  and 
railroad,  that,  on  the  day  and  year  aforesaid,  by  the 
carelessness,  negligence,  and  default  of  its  said  agents 
and  servants,  and  for  want  of  due  care  and  attention  to 


PERSONAL    INJURY    BY    NEGLIGENCE.  73 

its  duty  in  that  behalf,  the  said  car  was  run  off  the  track 
of  said  railroad,  and  thrown  down  the  embankment 
thereof,  whereby  the  said  plaintiff  was  greatly  cut,  bruised 
and  wounded,  so  that  he,  the  said  plaintiff,  became  and 
was  sick,  lame,  and  unable  to  walk,  and  was  wholly 
unable  to  attend  to  the  transaction  and  performance  of 
his  usual  and  necessary  business,  and  so  continued  from 
thence  hitherto;  and  said  plaintiff  has  been  put  to  great 

expense,  to  wit,  to  the  amount  of dollars,  in 

endeavoring  to  cure  his  said  wounds,  bruises  and 
fractures. 

\Demand  of  Judgment.'] 


No.  360. 

v.    For  Injuries  Caused  by  Negligence  on  a  Railroad,  in  Omitting  to  give 

Signal. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on    the  ....  day    of ,  187 . ,    the 

defendant  was  a  corporation  duly  incorporated  under 
and  pursuant  to  the  laws  of  this  State,  and  was  the 
owner  of  a  certain  railroad,  known  as Rail- 
road, together  with  the  track,  rolling  stock,  and  other 
appurtenances  thereto  belonging. 

II.  That  on  that  day  the  plaintiff  was  traveling  in  a 
carriage  along  the  public  highway,  from    to 

,  which  public  highway  crosses  the  railroad 

aforesaid  at ;  and  as  the  plaintiff  had  reached 

said  crossing,  the  defendants  carelessly  and  negligently 
caused  one  of  their  locomotives  [with  a  train  of  cars 
attached  thereto]  to  approach  said  crossing,  and  then 


74  FORMS    OF     COMPLAINTS. 

and  there  to  pass  rapidly  over  the  track  of  said  railroad, 
and  negligently  and  carelessly  omitted  their  duty  while 
approaching  said  crossing,  to  give  any  signal,  by  ring- 
ing the  bell  or  sounding  the  steam-whistle,  by  reason 
whereof  the  plaintiff  was  unaware  of  their  approach. 

III.  That  in    consequence    thereof  the.  locomotive 
struck  the  plaintiffs  horse,  and  overset  the  plaintiff's 
carriage,  and  plaintiff  was  thrown  out  upon  the  ground 
with  such  force  as   to  fracture  his  left  arm  [or  other 
injuries^. 

IV.  That  thereby  the  plaintiff  was  put  to  great  pain, 
and  was  and  still  is  prevented  from  going  on  with  his 

business  as ,  and  is,  as  he  believes,  permanently 

injured,   and  was   otherwise  greatly  injured,   and  was 

compelled    to    expend    dollars    for    medical 

attendance  and  nursing. 

[Demand  of  Judgment J] 


Omission  of  Duty. — The  facts  which  are  relied  on  as  raising  a 
duty  must  be  alleged  where  the  negligence  consists  in  the  omission  of 
a  duty.  (City  of  Buffalo  v.  Holloway,  7  N.Y.  (3  Seld.}  393;  affirming 
S.C.,  14  Barb.  101;  Taylor  v.  Atlantic  Mutual  Ins.  Co.,  2  Bosw.  106; 
Congreve  v.  Morgan,  4  Duer.  439;  Seymour  v.  Maddox,  16  Q.  B.  326; 
S.C.,  71  Eng.  Com.  L.  R.,  326;  and  see  McGinity  v.  Mayor  etc.,  5 
Duer,  674.)  An  existing  duty  or  obligation  is  an  essential  and  neces- 
sary prerequisite  or  predicate  of  an  affirmation  of  neglect  or  failure  to 
perform.  Eustace  v.  Jahns,  Cal.  Sup.  Ct.,Jul.  T.,  1869. 


PERSONAL    INJURY    BY    NEGLIGENCE.  75 

No.  361. 

vi.    By  Steamboat  Explosion. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   at   the    time    hereinafter    mentioned,    the 
defendants  were  common  carriers  of  passengers  for  hire, 
between and    ,   and  were  the  pro- 
prietors of  a  steamboat,  named  the ,  employed 

by  them  in  carrying  passengers  and  merchandise  on  the 

river,  from to    ,  for  hire. 

II.  That  on  the    ....    day  of   .  .  •. ,   187.,  the 

defendants    received    the    plaintiff    and   his    wife   and 
daughter  into  said  boat,  for  the  purpose  of  safely  con- 
veying them  therein  as  passengers,  from to 

,  for dollars,   paid  to  them  by  the 

plaintiff. 

III.  That  the  defendants  so  negligently  and  unskill- 
fully  conducted  themselves,  and  so  misbehaved  in  the 
management  of  said  boat,  that,  through  the  negligence 
and  unskillfulness  of  themselves  and  their  servants,  the 
steam  escaped  from  the  boiler  and  engine,  and  burned 
and  scalded  \pr  otherwise  state  injury,  according  to  the 

facts],  the  plaintiff,  and  his  wife  and  daughter. 

IV.  That  in  consequence  thereof  the  plaintiff  and 
his  said  wife  and  daughter  became,  and  for  a  long  time 
remained  ill;  the  plaintiff  was  deprived,  and  for  a  long 
time  to  come  will  be  deprived,  of  the  assistances  and 
services  of  his  wife  and  daughter,  and  was  compelled  to 
and  did  expend .  dollars  in  attempting  to  cure 


76  FORMS    OF     COMPLAINTS. 

himself  and  his  wife  and  daughter,  and  was  for 

months  prevented  from  pursuing  his  business,  and  was 
otherwise  greatly  injured. 

[Demand  of  Judgment. .] 


22.  Condition  of  Boiler. — The  certificate  of  an  inspector  does 
not  discharge  the  liability  of  the  owner  of  a  boiler  to  the  party  injured 
by  its  bursting.     Swarthout  v  N.J.  Steamboat  Co.,  46  Barb.  222. 

23.  Master  and   Servant. — The  owner  of  water  craft  is  not 
liable  for  the  injury  willfully  committed  by  the  master  or  pilot  running 
her.     Turnpike  Co.  v.  Vanderbilt,  i  Hill,  480. 

24.  Negligent  Delay. — As  to  liability  of  a  transportation  com- 
pany to  passenger  for  injury  occasioned  by  negligent  delay,  see  Van 
Buskirk  v.  Roberts,  31  N.Y.  66 1. 

25.  Negligence    in    Navigating    Water    Craft.— — The 

plaintiff  in  an  action  for  damages  for  injuries  caused  by. negligence  in 
sailing  water  craft,  must  show  that  he  used  ordinary  care.  Barnes  v. 
Cole,  21  Wend.-i88;  4  McLean,  286;  Rathburn  v.  Payne,  19  Id.  399; 
United  States  v.  Mayor,  5  Mo.  230;  Simpson  v.  Hand,  6  Whart.  311; 
Logan  v.  S.  B.  Clipper,  18  Ohio,  375. 

26.  Rule    of  Damages. — Where  the  collision  occurs  without 
negligence  of  either  party,  each  must  bear  his  own  loss.     Stainbach  v. 
Roe,    14  How.  U.S.  532;    Williamson  v.  Barrett,   13  How.  U.S.  101; 
Halderman  v.  Beckwith,  4  McLean,  286;    Barrett  v.  Williamson,  Id. 
589;  4  Harring.  Rep.  228;   I  Tex.  30. 

27.  Rules  of  Navigation. — Steam  vessels  are  bound  to  keep 
clear  of  sailing  vessels;  they  are  treated  as  having  wind  in  their  favoi. 
St.  John  v.  Paine,  10  Hozv.  U.S.  581;  Nanton  v.  Stebbins,  10  Id.  586; 
The  "Lady  Anne,"  I  Eng.  L.  and Eq.  670;  The  "Europa,"  2  Id.  557; 
"Western  Belle"  v.  Wagner,  n  Mo.  30. 


PERSONAL   INJURY   BY    NEGLIGENCE.  77 


No.  362. 

vii.    For  Injuries  to  Engineer  of  a  Railroad  Company,   Caused  by  a 

Collision. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on   the    ....    day  of ,  187 .,  the 

defendant  was  a  corporation,  duly  incorporated  under 
and  pursuant  to  the  laws  of  the  State  of  California,  and 

was    owner  of  a    certain  railroad  known  as 

Railroad,  together  with  the  track,  cars,  and  locomotives 
thereto  belonging. 

II.  That   one  of  said   locomotives,    and   the  rtrain 

thereto  attached,  ran  from to ,  and 

back  again,  each  day;  and   another  thereof  ran    from 

to  said ,  and  back  again,  each  day; 

which  said  locomotives,  with   their   respective   trains, 
were  used  and  accustomed  to  meet,  and  safely  pass 
each  other,  at 

III.  That   the   said  plaintiff  was  employed  by  the 
said  defendant  as  an  engineer  upon  one  of  said  locomo- 
tives, at  and  for  a  certain  hire  and  reward  agreed  upon 
by  the  parties  in  that  behalf,  and  was  accustomed  to 

stop  the  said  last  mentioned  locomotive   at 

aforesaid,   under  the  instruction  by  him  received  from 
the  said  defendant,  and  there  to  pass   the  said  other 
locomotive  as  aforesaid. 

IV.  That  by  reason  of  the  premises  it  became  the 
duty  of  the  said  defendant  to  give  the  said  plaintiff  due 
notice  of  any  change  in  the  place  of  meeting  and  pas- 
sing of  the  said  locomotives  and  their  respective  trains, 
yet  the  said  defendant,  not  regarding  its  said  duty,  did, 


78  FORMS    OF     COMPLAINTS. 

on  the  ....  day  of ,  187 . ,   change  the    place 

of  meeting  and  passing  of  said  locomotives,  with  their 

respective  trains,  from  said ,  to  said , 

and  did  direct  said  change  to  be  carried   into  effect  on 
the  ....  day  of ,  187.. 

V.  That  the  said  defendant  wholly  neglected  and 
failed  to  give  the  said  plaintiff  notice  of  the  said  change 
in  the  place  for   the    passing  of  said   locomotives  with 
their  respective  trains,  and  whilst  the  said  plaintiff  was 
proceeding,  in  his  capacity    of  engineer   as    aforesaid, 
on    one    of  said    locomotives,    with    the   train  thereto 
belonging,  according  to  the  directions  before  that  time 
given  to  the  said  plaintiff  by  the  said  defendant,  between 
...  1  ....  and aforesaid,    the    other  locomo- 
tive with  its  train,  coming  from .to , 

ran  against  it,  and  violently  crushed  the  same. 

VI.  That  by  reason  thereof  the  plaintiff  was  severely 
scalded,  bruised,  burnt  and  wounded,  and  became  sick, 
sore,  lame  and  disordered,   and    so  remained  for  the 

space  of .  . months,  and  was  compelled  to  expend 

the  sum  of dollars  for  medical   attendance; 

and  was  prevented  from  attending  to  his  ordinary  busi- 
ness, and   lost  all  the  wages  he  otherwise  would   have 
earned,  to  wit,  the  sum  of dollars. 

[Demand  of  Judgment. \ 


28.  Company,   when  not   Liable. — The  fact  that  a  railroad 
company's  servant  was  r.Y  a  higher  grade  than  another  servant  of  said 
company,  injured  through  his  negligence,  does  not  make  the  company 
liable.     Shanck  v.  Northern  Central  R.R.  Co.,  25  Md.  462;  Cumber- 
land Coal  and  Iron  Co.  v.  Scally,  27  Md.  589. 

29.  Employer,  when  Liable. — If  injury  to  the  employee  results 


PERSONAL    INJURY   BY    NEGLIGENCE.  79 

from  fault  or  negligence  on  the  part  of  the  employer,  the  employer 
is  liable.  (Ryan  v.  Fowler,  24  N.Y.  410;  Conolly  v.  Poillon,  41  Barb. 
366.)  But  if  such  injury  results  from  defects  in  machinery,  etc.,  notice 
of  such  defect  must  be  brought  home  to  the  employer.  Kunz  v.  Stew- 
art, i  Daly  431;  Loonam  v.  Brock  way,  28  How.  Pr.  472. 

30.  Joinder  of  Parties. — Master  and  servant  may  be  joined  as 
defendants  in  an  action  to  recover  for  the  negligence  of  the  servant. 
Montford  v.  Hughes,  3  E.  D.  Smith,  591. 

31.  Mutual    Negligence. — The  rule  that  the  plaintiff  cannot 
recover  if  his  own  wrong  as  well  as  that  of  the  defendant  conduced  to 
the  injury,  is  confined  to  cases  where  his  wrong  or  negligence  has 
immediately  or  approximately  contributed  to  the  result.   (Kline  v.  C.  P. 
R.R.  Co.,   Cal.  Sup.  O.,  Apl.  T.,  1869;  citing  Needham  v.  San  Fran- 
cisco and  SJ.  R.R.  Co.,  decided  at  the  same  term.)     A  slight  want  of 
care  on  the  part  of  the  plaintiff  will  not  excuse  gross  negligence  by 
the  defendant.     Bequette  v.  People's  Trans.  Co.,  2  Or.  200. 

32.  That  Plaintiff  did  not  Contribute  to  Injury. — In  an 

action  against  a  railroad  company  by  one  of  its  servants  to  recover  for 
injuries  received  through  the  negligence  of  another  servant,  the  com- 
plaint must  allege,  either  expressly,  or  by  stating  facts  from  which  it 
clearly  appears,  that  the  plaintiff  did  not  by  his  own  fault  or  negligence 
contribute  to  the  injury.  Evansville  R.R.  Co.  v.  Dexter,  24  Ind.  411. 

33.  Want     of    Ordinary    Care. — It  is  not  necessary  for  the 
plaintiff  to  allege  in  his  complaint  that  the  injury  happened  without  any 
want  of  ordinary  care  on  his  part;  except  where  the  facts  alleged  are 
such  as  to  raise  a  presumption  of  such  fault  in  him.     Johnson  v.  Hud- 
son River  R.R.  Co.,  5  Duer,  21;  20  N.F.  65;   Wolfe  v.  Supervisors  of 
Richmond,   n   Abb.  Pr.   270;   S. C.,  19  How.  Pr.   370;    Burdick  v. 
Worral,  4  Barb.  596. 


8O  FORMS    OF    COMPLAINTS. 

JVo.  363. 

viii.    For  Injuries  to  Engineer  of  a  Railroad  Company — Said  Company 
having   Used  a  Condemned  Locomotive. 

[TITLE.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,   187 .,  the 

defendant  was  a  corporation,  duly  incorporated  under ' 

and  pursuant  to  the  laws  of  the  State  of ,  and 

was  the  owner  of  a  certain  railroad,  and  of  a  locomotive 
propelled  by  steam  on  said  railroad,  and  by  said  defend- 
ant used  and  employed  in  carrying  and  conveying  pas- 
sengers and  goods  [or  hauling  trains  of  cars  containing 
passengers  and  goods],  upon  and  over  the  said  railroad 
of  the  said  defendant,  from to 

II.  That  the  said  plaintiff  on  the  day  and  year  afore- 
said, at    aforesaid,  and  at  the  time  of  the 

committing  of  said  grievances,  was  in  the  employ  of  the 
said   defendant,  as  engineer  upon  said  locomotive,  so 
moved  and  propelled  by  steam  as  aforesaid;  and  that  it 
then  and  there  became  and  was  the  duty  of  the  said  de- 
fendant, to  procure  a  good,  safe,  and  secure  locomotive, 
with  good,  safe,  and  secure  machinery  and  apparatus, 
to  move  and  propel  the  same  as  aforesaid. 

III.  That  the  said  defendant  conducted  itself  so  care- 
lessly, negligently  and  unskillfully,  that,  by  and  through 
the  carelessness,   negligence   and  default   of  the   said 
defendant  and  its  servants,  it  provided,  used,  and  suf- 
fered to  be  used,  an  unsafe,  defective,  and  insufficient 
locomotive,  of  which  it  had  notice. 

IV.  That  for  want  of  due  care  and  attention  to  its 
duty  in  that  behalf,  on  the  said day  of , 


PERSONAL   INJURY    BY    NEGLIGENCE.  8 1 

187.,  at aforesaid,  and  whilst  the  said  loco- 
motive was  in  the  use  and  service  of  the  said  defendant, 
upon  said  railroad,  and  whilst  the  said  plaintiff  was  on 
the  same,  in  the  capacity  aforesaid,  for  the  said  defend- 
ant, the  boiler  connected  with  the  engine  of  the  said 
locomotive,  by  reason  of  the  unsafeness,  defectiveness, 
and  insecurity  thereo'f,  exploded;  whereby  large  quan- 
tities of  steam  and  water  escaped  therefrom,  and  fell 
upon  the  said  plaintiff,  by  which  he  was  greatly  scalded, 
burnt,  and  wounded,  and  became  sick,  sore,  and  disor- 
dered, and  so  remained  for  the  space  of 

months,  and  was  compelled  to  expend  the  sum  of 

dollars  for  medical  attendance,  and  was  prevented  from 
attending  to  his  ordinary  business,  and  lost  all  his 
wages  he  otherwise  would  have  earned,  to  wit:  the  sum 
of dollars. 

[Demand  of  Judgment^ 


34.  Company  Liable  for  Acts  of  Servants. — It  has  also 
been  held  in  a  case  where  men  are  in  the  employ  of  a  manufacturing 
company,  that  where  an  injury  is  suffered  through  the  gross  carelessness 
of  the  agent  of  the  company,  the  company  is  liable  in  damages. 
(Albro  v.  Agawam  Canal  Co.,  6  Cush.  75.)  It  has  heen  the  opinion  in 
a  large  number  of  cases  very  similar  to  those  above  referred  to,  that  the 
inquiry  should  be  made:  "Did  the  accident  happen  through  the  fault 
of  the  company,  or  the  fault  of  its  sen-ants;"  and  if  through  the  fault  of 
the  servants,  and  without  any  fault  on  the  part  of  the  company, 
then  it  would  not  be  liable.  As  in  the  above  case,  so  in  the 
case  of  (Keegan  v.  Western  Railroad  Corporation,  4  Seld.  Rep. 
175),  it  was  Mdthat  the  defendant  was  liable,  on  the  ground  that  the 
neglect  was  that  of  the  corporation,  and  not  of  its  servants,  and  so  did 
not  come  within  the  principle  established  in  (Coon  v.  S.  and  U.  R.R. 
Co.,  i  Seld.  Rep.  492.)  The  locomotive  in  this  case  had  been  reported 
as  insufficient  by  the  engineers,  but  the  corporation  continued  to  use 
it;  hence  it  was  the  fault  of  the  corporation,  and  not  of  its  servants. 

6 


82  FORMS    OF    COMPLAINTS. 

35.  Form. — The  above  form    is    partially  taken    from    Nash's 
Pleadings  and    Forms,   and    is  here   given,   although,    as  stated   in 
the    last    above    note,    there    are    many    of    the    profession    who 
entertain    grave    doubts    about    an    action    lying    against    the    rail- 
road  company  in  a  case  of  that  character.     This  action  was,  how- 
ever, sustained  by  the  Supreme  Court  of  the  State  of  Ohio,  in  (Stevens 
v.  Little  Miami  Railroad  Co.,  20  Ohio  R.  415.)     And  a  like  doctrine 
has  since  been  maintained  by  the  courts  of  New  York,  Massachusetts, 
and  in  England.     (Coon  v.  S.  and  U.  R.R.  Co.,  i  Selden,  92;  Hays  v. 
W.  R.R.  Co.,  3  Gushing,  270;  Skip  v.  Eastern  R.R.  Co.,  24  Eq.  &  L. 
Rep.  396;  Wigmore  v.  Jay,  5  Exch.  Rep.  354.)     But  it  seems  our  own 
Supreme  Court  in  (McGlynn  v.  Brodie,  31  Cal.  376),  holds  to  a  differ- 
ent doctrine. 

36.  Liability  of  Master. — A  master  is  bound  to  use  reasona- 
ble care  and  diligence  to  prevent  accident  or  injury  to  his  servant,  in 
the  course  of  his  employment,  and  is  responsible  in  damages  for  failure 
to  do  so.     (Hallower  v.  Henley,  6  Cal.  209.)     A  common  employer  is 
not  responsible  for  the  injury  to  one  servant,  occasioned  by  the  negli- 
gence of  another,  in  the  course  of  their  common  employment,  unless 
he  himself  was  in  fault.     (Wrights.  N.Y.  Central  R.R.  Co.,  25  N.Y. 
562;  Treadwell  v.  Mayor  of  N.Y.,  i  Daly,   123;  Kunz  v.  Stuart,  Id. 
431.)     A  railroad  company  having   employed  competent  persons  to 
supervise  and  inspect  its  road,  bed  and  bridges,  is  not  liable  for  an 
injury  to  one  of  its  servants,  caused  by  the  falling  of  a  bridge,  in  conse- 
quence of  a  latent  defect.     Warner  v.  Erie  Railway  Co., '39  N.F.  468 

37.  Risk   of  Employee. — In  the  recent  case  of  (McGlynn  v, 
Brodi,  31  Cal.  376),  it  is  held  that,  "  if  an  employee  works  with  or  near 
machinery  which   is  unsafe,  and  from   which  he  is  liable  to   sustain 
injury,  with  a  knowledge,  or  means  of  knowing  of  its  condition,  he  takes 
the  risk  incident  to  the  employment  in  which  he  is  thus  engaged,  and 
cannot  maintain  an  action  for  injuries  sustained  arising  out  of  accident, 
resulting    from    such   defective   condition   of    the    machinery."     See 
McGatrick  v.  Wason,  4  Ohio  St.  R.   569;  Hayden  v.  Smithville  Mfg. 
Co.,  29  Conn.  558;  William  v.  Clough,  3  Hurl.  &  Norm.  258;  Griffiths 
v.  Gidlow,    648;  Dyman  v.  Leach,  40  Eng.  L.  &  E.  492;  Skipp  v. 
Eastern  Co.  Railway  Co.,  9  Ex.   223;  6  Ed.  of  Story  on  Agency,  Sec. 
453,  and  Notes;  Hallower  v.  Henly,  6  Cal.  210. 


PERSONAL   INJURY    BY    NEGLIGENCE.  83 


Wo.  364. 

i.    By   Executor   or  Administrator,  against  a  Railroad  Company,  for 

Injuries  Causing  Death. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That    on   the....    day   of ,   187.,   the 

defendant   was  a  corporation    duly    organized   by  [or 
under]  the  laws  of  this  State,  and  was  a  common  carrier 

of  passengers  for  hire,  by  railroad,  between 

and 

II.  That  on  that  day  said  defendant  received  one 
A.  B.  into   its  cars,  for  the  purpose  of  conveying  him 

therein  as  a  passenger  from to [for 

dollars  paid  to  them  by  said  A.  B.] 

III.  That  while  he  was  such  passenger,  at , 

a  station  on  the  line  of  the  said  railroad,  a  collision 
occurred,  by  which  [the  cars  of  the  said  railroad  were 
thrown  from  the  track,  and  the  car  in  which  the  said 
A.  B.  then  was,  was  precipitated  down  an  embankment, 
and  the  said  A.  B.  was  thereby  killed,  or  as  the  case 
.may  be],  which  was  caused  by  the  negligence  of  the 
defendant  and   the  defendant's  servants. 

IV.  That  on  the  ....  day  of ,  187 .,  let- 
ters of  administration  upon  the  estate  of  the  said  A.  B. 
were  duly  issued  by  the  Probate  Court  of  the  County 

of to  the  plaintiff,  by  which  he  was  appointed 

administrator  of  all  the  goods  and  credits  belonging  to 
the  said  A.  B.  at  the  time  of  his  death,  and  he  thereupon 
was  qualified   and  entered    upon   his   duties   of    such 
administration. 

[Demand  of  Judgment^ 


84  FORMS    OF    COMPLAINTS. 

28.  Conflict  of  Laws. — An  administrator  appointed  in  one  state 
cannot  maintain  an  action  there,  on  the  statute  of  another  state,  which 
gives  to  the  personal  representatives  of  a  person  killed  by  wrongful  act, 
neglect,  or  default,  a  right  to  maintain  an  action  for  damages  in  respect 
thereof,  notwithstanding  the  death,  for  the  benefit  of  the  widow  or  next 
of  kin,  against  the  party  that  would  have  been  liable  if  death  had  not 
ensued.  Richardson  v.  N.Y.  Cent.  R.R.  Co.,  98;  Mass.  85. 

39.  Damages. — Damages  ensuing  from  bodily  pain  need  not  be 
alleged  specially  in  the  complaint.     (Curtis  v.  Rochester  and  Syracuse 
R.R.  Co.,  20  Barb.  282;  affirmed,  18  N.Y.  (4  Smith]  534.)    But  funeral 
expenses  are  not  recoverable,  except  as  special  damages,  if  recoverable 
at  all,  and  must  be  specially  pleaded.     (Gay  v.  Winter,  35  Cal.  153.) 
As  to  measure  of  damages  in  case  of  the  death  of  a  woman  having 
children,  see  (Tilley  v.  Hudson  River  R.R.  Co.,  29  N.Y.  252;  S.C.,  24 
N.Y.  471;  Mclntyre  v.  N.Y.  Cent.  R.R.  Co.,  43  Barb.  532.)    As  to  the 
rule  for  pleading  special  damages,  see  Ante,  Vol.  i.,  p.  238-9,  Notes 
114-116. 

40.  Liability  for  Causing  Death. — Whenever  the  death  of  a 
person  shall  be  caused  by  wrongful  act,  neglect,  or  default,  and  the  act, 
neglect,  or  default  is  such  as  would  (if  the  death  had  not  ensued)  have 
entitled  the  party  injured  to  maintain  an  action  and  recover  damages  in 
respect  thereof,  then,  and  in  every  such  case,  the  person  who  or  the 
corporation  which  would  have  been  liable  if  death  had  not  ensued, 
shall  be  liable  to  an  action  for  damages,  notwithstanding  the  death  of  the 
person  injured,  and  although  the  death  shall  have  been  caused  under 
such   circumstances    as  amount  in    law   to    felony.      Gen.  Laws  of 
Cal.  12,325. 

41.  Limitation  of  Action. — In  California,  every  action  for  the 
death  of  a  person  by  wrongful  act  shall  be  commenced  within  two  years 
after  the  death  of  such  deceased  person.    Gen.  Laws  of  Cal.  \  2,327. 

42.  Negligence. — The    complaint   alleged    that  a  car -of   the 
defendant,  in  charge  of  their  servant  and  agent,  was  wrongfully  driven 
over  a  child,  whereby,  etc.,  and  that  the  defendants,  by  negligence  of 
themselves  and  their  agents,  ran  over  the  child  and  caused  her  death. 
Held,  that  evidence  was  admissible  of  any  facts  of  negligence,  on  the  part 
of  the  defendants,  in  the  construction  of  the  cars,  which  would  have 
aided  in  causing  such  injury.    Oldfield  v.  New  York  and  Harlem  R.R. 
Co.,  3  E.  D.  Smith's  C.  P.  R.  103. 


PERSONAL   INJURY   BY   NEGLIGENCE.  85 

43.  Parties  Plaintiff — A  father,  or  in  case  of  his  death  or  deser- 
tion of  his  family,  the  mother  may  maintain  an  action  for  the  injury  or 
death  of  a  child;  and  so  may  a  guardian  for  the  injury  or  death  of  his 
ward.  (Cat.  Pr.  Act,  §  1 1 ;  see  Parties,  Ante,  Vol.  i.,  p.  80.)  An  action  may 
be  maintained  by  a  father  as  administrator  of  unmarried  infant  son,  and 
it  is  not  indispensable  that  deceased  should  leave  a  widow  and  next  of 
kin.    (McMahon  v.  Mayor  of  N.Y.,  33  N.F.  642.)     A  husband  cannot 
maintain  an  action  for  the  instantaneous  killing  of  his  wife  through  the 
negligence  of  defendant.     The  well  settled  common  law  rule  that  no 
damages  can  be  recovered  by  action  for  injuries  resulting  in  immediate 
death  applies  to  actions  brought  by  a  husband  for  injury  to  his  wife. 
The  loss  of  society  and  assistance  do  not  alter  the  case;  and  the  New 
York  Statute  of  1847  nas  not  extended  the  remedy  to  such  an  injury. 
(Greene  v.  Hudson  River  R.R.  Co.,  2  Keyes;   affirming  28  Barb.  9.) 
An  action  in  Pennsylvania  against  a  railroad  company,  for  negligence 
in  causing  the  death  of  a  father,  is  properly  brought  in  the  name  of  all 
the  children.     The  recovery  is  for  the  benefit  of  all,  the  amount  to  be 
distributed  as  in  case  of  intestacy.     North  Penn.  R.R.  Co.  v.  Robinson, 
44  Penn.  State  R.  175. 

44.  Parties   Defendant. — It  seems  that  the  decisions  of  the 
New  York  Court  of  Appeals  in  (Charman  v.  New  Haven  R.R.  Co., 

19  N.  K  341;  and  Colegrove  v.  New   York  and  New  Haven  R.R.  Co., 

20  New  York,  492)   to   the  effect  that  a  passenger  in  a  vehicle  or   rail- 
road car,  injured  by  its  collision  with  another  vehicle  or  car,  resulting 
from  the  concurrent  negligence  of  the  owners  of  such  vehicles  or  cars, 
or  their  employees,  may  maintain  a  joint  action  against  both,  are  in  a 
great  measure  overruled   by  the   later  case   of  Brown  v.  New  York 
Central  R.R.  Co.,  32  N. Y.  597;  Mooney  v.  Hudson  River  R.R.  Co., 
5  Rob.  548. 

45.  Personal  Representatives. — Every  action  for  the  death 
of  a  person,  caused  by  wrongful  act,  neglect,  or  default  of  a  person  or 
corporation,  shall  be  brought  by  and  in  the   names  of  the  personal 
representatives  of  such  deceased  person.     (Gen.  Laws  of  Cal.  §  2,327.) 
The   provision   of    the   Louisiana   statute,  that  the  cause   of   action 
for  the   wrongful  death   of   a  person   shall   survive   to   the   personal 
representatives  for   the  space  of  one  year   from  the   death,  is  a   legal 
subrogation  in  favor  of  the  persons  designated  to  the  right  of  action  of 
the  deceased;  and  in  case  of  a  suit  under  that  subrogation  the  plaintiff 
should  allege  that  his  cause  of  action  was  derived  from  deceased  under 


86  FORMS   OF    COMPLAINTS/ 

the  statute,  and  a  neglect  to  do  this  will  be   fatal.     Earhart  v.  New 
Orleans  etc.  R.R.  Co.,  17  La.  An.  243. 

46.  Special  Damage. — In  an  action  for  death  by  the  wrongful  act 
of  a  person,  it  is  not  necessary  to  allege  or  prove  special  damage.     Keller 
v.  N.Y.  Cent.  R.R.  Co.,  24  How.  Pr.  172;    Mclntyre   v.  N.Y.  Cent. 
R.R.  Co.,  43  Barb.  532;  see  Ante,  Vol  i.,  pp.  238-9,  Notes  114-116. 

47.  What  must  be   Shown. — To  maintain  an  action  for  caus- 
ing by  wrongful   acts  the  death  of  or   injury  to   a  person,  two   things 
must  be  shown:  First,  An  obstruction  in  the  road  by  the  fault  of  the 
defendant:  Second,  No  want  of  ordinary  care  on  the  part  of  the  plaintiff 
or  party  injured.     The  gravamen  of  the   action   is  the   negligence  of 
the  defendant,  and  plaintiff  cannot  recover  where  it  appears  that  the 
negligence  of  the    deceased  or  person   injured   contributed   in  any 
degree  to  the  death   or  injury  sustained.     (Gay  v.   Winter,    34    Cal. 
153.)    But  in  cases  where  the  negligence  of  the  defendants  is  affirma- 
tively shown,  and  there  is  no  proof  of  the  conduct  of  the  deceased  or 
person  injured,  the  jury   are   at   liberty  to   infer   ordinary   care   and 
diligence  on  his  part,  taking  into  consideration  his  character  and  habits 
as  proved,   and  the   natural   instinct   of  self  preservation.     (Gay  v. 
Winter,  34  Cal.  153.)     In  such   actions,  if  the  plaintiff  makes  a   case 
which  does  not  charge  the  deceased  or  the  person   injured  with  neg- 
ligence, the  case  should  be   permitted   to  go  to   the  jury,  under  ap- 
propriate instructions.     Gay  v.  Winter,  34  Cal.  153. 

48.  Widow  and  Next  of  Kin. — It  was  held  in  the  Superior  Court 
(N.Y.),  that  a  complaint  of  this  kind  must  expressly  allege  that  there 
is  a  widow,  or  next  of  kin,  giving  their  names,  and  alleging  that  they 
had  sustained  pecuniary  injury.     (Safford  v.  Drew,  3  Duer,  641.)     But 
the  doctrine  of  this  case  is  entirely  inconsistent  with  the  later  cases  of 
(Chapman  v.  Rothwell,  Ellis  Bl.  and  E.  168;  Quin  v.  Moore,  15  N.Y. 
436;  Oldfield  v.  New  York  and  Harlem  R.R.,  14  N.Y.  316;  Dickens 
v.  New  York  Central  R.R.  28  Barb.  41;  Keller  v.  New  York  Central 
R.R.  17  How.  Pr.   102.)    The  first  of  these  cases  expressly  decides 
that  no  allegation  of  damage  to  the  next  of  kin  is  necessary;  and  though 
the  whole  doctrine  of  Safford  v.  Drew  is  not  overruled  in  terms,  yet 
it  is  in  effect,  and  that  nominal  damages,  at  least,  may  be  recovered 
on  the  above  complaint,  with  liberty  to  prove  actual  damage.     In  Cal- 
ifornia, however,  the  statute  especially  provides  for  this  class  of  actions. 
See  Gen.  Laws  of  Cal.  §§  2,325-2,327. 


PERSONAL    INJURY    BY    NEGLIGENCE.  87 


JVo.  365. 

ii.    Against  a  Municipal  Corporation,  for  Injuries  Caused  by  Leaving 
the  Street  in  an  Insecure  State. 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  municipal  corporation, 
duly  organized  under  the  laws  of  this  State. 

II.  That,  among  other  things,  it  is  by  their  charter 
made  their  duty  to  keep  the  streets  in  said  City  in  good 
order,  and  at  all  times  properly  to  protect  any  excava- 
tions made  in  said  streets,  by  placing  lights  and  signals 

thereat  to  indicate  danger. 
• 

III.  That  a  certain  street  in  said   city,  known  as 

,  was  and  is  a  common  thoroughfare,  and  used 

by  the  citizens  thereof  and  others;  and  that  the  duty  of 
said  defendants  as  to  said  street  was,  and  became  at  the 
time  hereinafter  mentioned,  a  matter  of  public  and  gen- 
eral concern. 

IV.  That  on  or   about  the   ....  day  of , 

187  .,  a  deep  and  dangerous  excavation  [hole  or  trench] 
was  dug  in  said  street  [or  an  obstruction  was  placed 
in  said  street,  and  negligently  left  therein],  and  suffered 
by  the  defendant,  during  a  night  on  or  about  said  day, 
to  remain  open,  exposed,  and  without  proper  protection, 
and  without  any  light  or  signal  to  indicate  danger. 

V.  That  the  plaintiff  on  the  night   aforesaid  was 
lawfully   traveling    on   said    street,    and   was    wholly 
unaware  of  danger,  and  was  accidentally,  and  without 
fault  or  negligence   on  his  part,  precipitated  into  said 
excavation  [hole  or  trench],  whereby  he  received  great 


88  FORMS    OF    COMPLAINTS. 

bodily  injury,  and  was  made  sick  and  sore,  and  was 
thereby  kept  to  his  bed,  and  detained  from  business  for 
days,  and  was  in  consequence  thereof  com- 
pelled to  expend dollars  for  medical  attendance 

and  nursing,  and  has  been  made  permanently  lame. 

[Demand  of  Judgment^ 


50.  Cause  of  Death. — Whenever  the  death  of  any  person  shall 
be  caused  by  an  injury  received  in  falling  through,  or  by  drowning 
after  having  fallen  through  any  opening  or  defective  place,  in  any  side- 
walk, street,  alley,  or  wharf,  in  any  city  or  incorporated  town,  the  death 
shall  be  deemed  to  have  been  caused  by  the  wrongful  neglect  and 
default  of  the  person  or  persons,  corporation  or  company,  firm  or  asso- 
ciation, whose  duty  it  was  at  the  time  said  person  received  such  injury 
to  have  kept  in  repair  such  sidewalk,  street,  alley,  or  wharf,  or  who  was 
or  were  at  that  time  liable  to  have  been  ordered  or  notified  to  make, 
or  to  have  been  assessed  for  the  expenses  of  making  the  repairs  on  such 
sidewalk,  street,  alley,  or  wharf  where  the  injury  to  such  person  occurred. 
(Gen.  Laws  of  Cal.  §  2,326;  Eustace  v.  Jahns,  Cal.  Sup.  Ct.,  Jul.  T., 
1869.)     The  responsibility  in  cases  of  a  personal  injury  from  falling 
through  a  defective  sidewalk  is  upon  him  who  has  the  control  and 
management  of  the  work.     Boswell  v.  Laird,  8   Cal.  469;  Faujoy  v. 
Seales,  29  Cal.  343;  followed  in  Du  Pratt  v.  Lick,  Cal.  Sup.  Ct.,  Jul.  T., 
1869. 

51.  Corporation,  Liability  of. — A  city  having  the  power  and 
duty  of  lighting  its  streets  is  liable  for  injuries  or  death  caused  by  a 
party's  falling  off  a  bridge,  opened  for  the  passage  of  a  vessel,  in  conse- 
quence of  its  being  insufficiently  lighted.     (Chicago  v.  Powers,  42  ///. 
1 79 ;  see  as  to  sidewalks,  Bloomington  v.  Bay,  Id.  503.)   As  to  the  liability 
of  corporations  for  the  neglect  to  have  proper  precautions  taken  for  the 
safety  of  the  public,  see  Grant  v.  City  of  Brooklyn,  41  Barb.  381; 
Davenport  v.  Ruckman,  10  Bosw.  20. 

52.  Defect   in   High-ways. — Plaintiff  was  injured  owing  to*  a 
defect  in  a  highway,  but  would  not  have  been  if  the  horse  had  not 
been  vicious.     He  had  never  driven  the  horse  before,  and  did  not 
know  of  its  viciousness.     Held,  that  plaintiff  could  recover  substantia 


PERSONAL    INJURY    BY    NEGLIGENCE.  '89 

damages.     Driving  a  vicious  horse  is  uprima  facie  evidence  of  negli- 
gence.    Daniels  v.  Saybrook,  34  Conn.  377. 

53.  Defective  Pier. — As  to  the  liability  of  the  owners  or  lessees 
of  a  defective  pier,  see  Moody  v.  Mayor  of  New  York,  43  Barb.  282; 
Cannavan  v.  Conklin,  i  Daly,  509. 

54.  Drover,  Liability  of. — The  law  governing  the  liability  of 
persons  for  driving  cattle   through  the  street  of  a  city,    for  damages 
caused  by  injuring  a  person  lawfully  in  the  street,  without  any  fault  on 
his  part,  is  the  same  as  that  by  which  the  carriers  of  passengers  are  gov- 
erned.    Ficken  v.  Jones,  28  Cal.  618. 

55.  Dug,  Opened  and  Made. — In  a  suit  caused  by  a  person's 
falling  into  an  area  in  a  public  sidewalk,  a  declaration  charging  that 
the  defendant  "dug,  opened  and  made"  the  area,  is  sustained  by  proof 
that  he  formed  it  partially  by  excavation,  and  partially  by  raising  walls. 
Robbins  v.  Chicago  City,  4  Wallace  U.S.  657. 

56.  Foundation  of  Action.— The  foundation  of  this  action  is 
the  personal  tort  of  the  defendant,  and   not  of  his  testators.     The 
defect  in  the  street  from  which  the  injury  resulted  to  plaintiff  is  not 
alleged  to  have  existed  anterior  to  the  death  of  such  testator;  hence  no 
obligation   was   incurred   by  the   testator   in  his   lifetime   in   respect 
thereto,  which  could  serve  as  a  basis  for  a  valid  claim  against  his  estate, 
or  a  right  of  action  against  the  administration  of  his  estate.     Eustace  v. 
Jahns,  Cal.  Sup.  Ct.,  July  T.,  1869. 

57.  Non-Repair  of  Premises. — A  complaint  against  the  owner 
of  premises  leased  to  a  third  person,  to  recover  damages  sustained  by 
plaintiff  by  the  falling  of  a  part  of  a  building  through  want  of  repairs,  is 
bad  on  demurrer,  unless  it  states  facts  from  which  the  Court  can  say  that 
the  owner  was  bound  to  keep  the  premises  in  repair.     A  mere  general 
allegation  that  defendant  was  bound  to  keep  the  premises  in  repair  is 
insufficient.     Casey  v.  Munn,  5  Abb.  Pr.  91;  S.C.,  14  How.  Pr.  162; 
see  Brown  v.  Harmon,  21  Barb.  508. 

58.  Respondeat  Superior. — The  responsibility,  in  cases  of  per- 
sonal injuries,  is  upon  him  who  has  the  control  and  management  of  the 
work,  and  the  relation  of  respondeat  superior  has  no  application  where 
the  relation  of  master  and  servant  does  not  exist.     (Fanjoy  v.  Scales,  29 
Cal.  243;  the  doctrine  approved  in  Du  Pratt  v.  Lick,  Cal.  Sup.  Ct.,  Oct. 
T.,  1869.)     Where  there  is  no  power  of  selection  or  direction,  there  can 


gO  FORMS    OF    COMPLAINTS. 

be  no  superior,  and  where  a  man  is  employed  to  do  the  work  with  his 
own  means  and  by  his  own  servant,  he  has  the  power  of  selection  and 
direction,  and  he,  and  not  the  person  for  whom  the  work  is  principally 
done,  is  the  superior.  Fanjoy  v.  Scales,  29  Cat.  243;  cited  and  fol- 
lowed in  Du  Pratt  v.  Lick,  Cal.  Sup.  C/.,  Oct.  T.,  1869. 

59.  Street    Contractor,    Liabilities. — The    responsibility    in 
cases  of  repairs  in  public  streets  made  by  a  contractor  rests  upon  him 
who  has  control  and  mangement  of  the  work.     The  doctrine  of  re- 
spondeat  superior  has  no  application  where  the  relation  of  master  and 
servant  does  not  exist;  but  where  a  man  is  employed  to  do  the  work 
with  his  own  means  and  by  his  own  servants,  he  and  not  the  person  for 
whom  the  work  is  being  primarily  done  is  the  superior.     Boswell  v. 
Laird,  8  Cal.  469;  the  doctrine  recognized  in  Fanjoy  v.  Scales,  29  Id. 
243;  and  followed  in  the  late  case  of  Du  Pratt  v.  Lick,  Cal.  Sup.  C/., 
Oct.  T.,  1869. 

60.  Street  Contractor  Primarily  Liable. — The  law  does  not 
impose  upon  the  owner  of  a  lot  fronting  on  a  street  of  an  incorporated 
city,  the  duty  to  repair  a  defect  in  <he  portion  of  the  public  street  upon 
which  his  lot  abuts  or  fronts.     (Eustace  v.  Jahns,  Cal.  Sup.  Ct.,  Jul.  T., 
1869.)    The  only  duty  imposed  on  him  is  the  payment  of  the  assessment 
which  shall  be  lawfully  imposed  upon  his  lots  or  lands.     So,  the  owner 
of  property  is  not  liable  for  the  torts  of  servants  employed  by  the  con- 
tractor.    (Van  Wert  v.  City  of  Brooklyn,  28  How.  Pr.  451;  O'Rourke 
v.  Hart,  7  Bosw.  511;  Shular  v.  Hud.  Riv.  R.R.  Co.,  38  Barb.  653;) 
nor  for  omissions  or  negligence  of  contractor  so  employed.     (Fish  v. 
Dodge,  38  Barb.  163;  Benedict  v.  Martin,  36  Id.  288.)     But  the  prin- 
cipal contractor  is  liable  for  negligence  of  sub-contractors  and  their 
servants.     (Creed  v.  Hartman,  29  N.Y.  591.)    So  of  a  party  obtaining 
authority  to  do  work  in  a  public  street.     (McCamus  v.  Citizens'  Gas 
Light  Co.  40  Barb.  380.)     But  public  officers  are  not  within  the  rule  of 
employer  and  employee,  and  are  not  responsible  for  persons  employed 
under  them.     (Murphy  v.  Commissioners  of  Immigration,  27  How.  Pr. 
41.)     Where  a  party  was  injured  by  falling  at  night  into  an  excavation 
made  in  grading  the  street  of  a  city,  under  a  city  contract,  owing  to  the 
failure  to  put  lights  or  guards  about  the  place,  the  contractor  and  not 
the  city  is  liable.     James  v.  San  Francisco,  6  Cal.  528;  see  Vol.  i., 
p.  285,  Note  58;  but  see  Ante,  Notes  49,  50. 


PERSONAL     INJURY    BY    NEGLIGENCE.  91 


JVo.  366. 

iii.    For    Injuries  Caused  by    Rubbish  in  the  Street,  whereby  Plaintiff 

was  Thrown  from  his  Carriage. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant,  on  or  about  the  ....  day  of 
.  .  .,  187 .,  wrongfully  placed  large  quantities  of 

lumber  and  bricks   in  the  public   highway  [known  as 

Street],  in ,  and  negligently  left  the 

same  therein,  obstructing  the  highway  during  the  night 
time,  and  without  proper  protection  or  notice  to  citizens 
and  travelers  against  accidents. 

II.  That  by  reason  of  said  negligence  and  improper 
conduct  of  the  defendant,  in  the  night  time  of  that  day, 
the  carriage  of  the  plaintiff,  with  the  plaintiff  therein, 
then  passing  through  said  street,  was  accidently  driven 
against  the  said  lumber  and  earth,  and   was  thereby 
overturned;  by  means  whereof  the  plaintiff  was  bruised 

and  wounded,  and  was  for days  prevented 

from  attending  to  his  business,  and  was  compelled  to 

expend,  and  did  expend dollars  for  medical 

attendance  and  nursing. 

\Demand  of  Judgment. \ 

61.  Mutual  Negligence. — A  child  was  killed  by  the  fall  of  a 
counter  on  which  he  was  climbing,  and  which  had  been  left  in  the  street 
of  a  city  for  two  or  three  weeks.  The  child  was  six  years  old,  and  at  the 
time  of  his  death  was  playing  unattended,  six  blocks  from  home.  Held, 
that  the  city  was  no  more  negligent  than  the  parents  of  the  child,  and 
was  not  liable.  Chicago  v.  Starr.  42  ///.  174. 


92  FORMS    OF    COMPLAINTS. 

No.  367. 

iv.    For  Injuries  Caused  by  Leaving  a  Hatchway  Open. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on   the  ....  day  of ,   187.,  the 

defendant  was  the   occupant  of  the  [store  No , 

Street],  and  had  possession  and  control  of 

the  hatchway  hereafter  mentioned. 

II.  That  on  the  said  day  the  plaintiff  was  in  the  said 
[store  or  building],  by  permission  of  the  defendant,  for 
the  purpose  of  transacting  business  with  him,  [or  in  the 
discharge  of  his  duties  as  state  ivhaf\. 

III.  That  the  hatchway  on  the  [second]  story  of  the 
said  building  was  then,  by  the  negligence  of  the  defend- 
ant, left  open,  unprotected  in  any  manner. 

IV.  That  in  consequence  thereof  the  plaintiff  fell 
through  the  said  hatchway,  and  was  much  injured  [state 
special  damage,  if  any,  as,  and  was  confined  to  his  bed 

and  detained  from  business  for days,    was 

compelled    to     expend   dollars    for    medical 

attendance  and  nursing,   and  has  been  made   perma- 
nently lame]. 

[Demand  of  Judgment^ 


PERSONAL     INJURY   BY    NEGLIGENCE.  93 

No.  368. 

v.    The  Same — Another  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That    on    the  ....  day    of   ,    187.,    at 

,  the  defendant  was  the  owner  and  had  pos- 
session and  control  of  a  certain  building  and  premises 
[describe  them],  with  the  appurtenances  thereto  belong- 
ing,   which   building   was    then    occupied    by    him   as 
[designate  the  uses  of  the  building,  if  a  public  resort]. 

II.  That  said  building  was  negligently  and  carelessly 
built,  inasmuch  as  there  was  in  the  public  hall  in  the 
third  story  of  the  same,  at  the  time  of  its  erection  and 
leasing  by  the  defendant,  as  well  as  at  the  time  herein- 
before   mentioned,   an   unguarded   hatchway,   opening 
into  the  second  story. 

III.  That  the  defendant,  well  knowing  the  premises, 
and  while  the  owner  and  occupant   [or  while  the  occu- 
pant] of  said  building,  did,  on  the  day  and  year  afore- 
said, negligently  leave  the  same  open  and  unprotected,  by 
means  whereof  the  plaintiff,  who  was  then  lawfully  in 
said  building,  and  in  pursuit  of  his  business  [or  otherwise 
show  for  what  purpose,  and  by  what  right,  the  plaintiff 
was  there],   then  and  there   necessarily  and  carefully 
passing  along  said  hall,  fell  through  said  hatchway. 

IV.  That  in  consequence  thereof  the  plaintiff  was 
greatly  injured,   and   became  sick   and  lame,  and   so 
remained  for  a  long  time  [or  so  still  remains],  and  was 
during  the  space  of prevented  from  attending 


94  FORMS   OF    COMPLAINTS. 

to  his  business  as    and  was   compelled    to 

expend    dollars  for  medical  attendance   [or 

otherwise  state  injuries  to  plaintiff~\. 

{Demand  of  Judgment^ 


No.  369. 

i.   For  Injuries  Caused  by   Vicious  Dog. 
*       [TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the ....  day  of ,  1 87 . ,  at 

the  defendant  was  the  keeper  \pr  owner]  of  a  certain 
vicious  dog,  which  was  accustomed  to  bite  mankind. 

II.  That    the   said   defendant,    well    knowing    the 
premises,  did  wrongfully  and  injuriously  keep  and  harbor 
the  said  vicious  dog,  and  wrongfully  and  negligently  suf- 
fered such  dog  to  go  at  large,  without  being  properly 
guarded  or  confined. 

III.  That  while  so  kept  as  aforesaid,  the  said  dog  did 
bite  and  greatly  wound  this  plaintiff  [state  the  part^c^i- 
lars~\,  whereby  this  plaintiff  became  sick  and  sore  and 
lame,  and  so  continued  for  the  space  of  [six  months] 
thence  next  following;  and  was  obliged  to  pay,  and  did 
expend dollars  for  medical  attendance  conse- 
quent thereon,  and  was  prevented  during  all  said  months 
of  sickness  from  attending  to  his  lawful  affairs. 


[Demand  of  Judgment.} 


62.  Averments  Essential. — The  averment  that  he  was  of  a 
mischievous  or  ferocious  nature  is  simply  an  averment  that  the  dog 
would  bite  men,  that  he  was  accustomed  to  bite,  and  this  is  best  evi- 


PERSONAL     INJURY   BY    NEGLIGENCE.  95 

denced  by  the  fact  that  he  did  bite  plaintiff,  There  are  three  necessary 
averments:  First,  That  the  dog  would  bite  mankind;  Second,  That 
the  owner  or  keeper  knew  it;  and,  Third,  That  he  did  bite  plaintiff. 
When  all  this  is  proved,  it  matters  not  how  carefully  the  dog  was  kept; 
the  owner  or  keeper  has  no  right  to  keep  such  a  dog  at  all.  McCaskill 
v.  Elliot,  5  Strobh.  R.  196;  but  the  cases  of  Jones  v.  Perry,  2  Esp.R. 
382;  and  Cockerham  v.  Nixon,  n  Iredell  Rep,  269,  seem  to  make  a 
distinction. 

63.  Counts. — Chitty  advises  counts  averring  that  the  dog  was  of  a 
ferocious  and   mischievous  nature,  and  also  for  not  keeping  the  dog 
properly  secured  or  fed,  as  the  facts  may  be.     2  Chitty  PL  597.    ^ 

64.  Mischievous  Animals. — The  gist  of  an  action  for  keeping 
a  mischievous  animal,  at  common  law,  is  the  keeping  of  the  animal 
after  knowledge  of  its  mischievous  propensities.     And  a  declaration  is 
sufficient  which  alleges  the  ferocity  of  the  animal,  and  the  knowledge 
of  the  defendant,  without  any  negligence  or  want  of  care.     Popplewell 
v.  Pierce,  10  Cush.  509,  and  cases  there  cited. 

65.  Ownership. — It  is  not  necessary  in  an  action  for  damages  sus- 
tained by  the  bite  of  a  dog,  for  the  plaintiff  to  prove  that  the  defendant 
owned  the  dog.     It  is  sufficient  on  this  point  for  the  plaintiff  to  prove 
that  the  defendant  kept  the  dog.     Wilkinson  v.  Parrott,  32  Cal.  102; 
and  see  Ficken  v.  Jones,  28  Cal.  618. 

66.  Scienter. — The  scienter  must  be  alleged  and  proved,     i  M. 
&  S.  238;  2  Salk.  R.  662;  2  Strange,  1,264;  Vrooman  v.  Sawyer,  13 
T.R.  339;  2  Esp.  Rep.  482  ;    4  Camp.  Rep.  198  ;    i  Starkie  Rep.  285; 
3  C.  &P.  138;  Marsh  v.  Jones,  21  Vt.  R.  378. 

67.  Vicious  Horse. — Defendant  negligently  let  his  horse  go  loose 
and  unattended  in  the  street  of  a  city,  where  the  horse  kicked  the  plain- 
tiff.    Held,  that  defendant  was  liable,  without  proof  that  the  horse  was 
vicious.     Dickson  v.  McCoy,  39  N.Y.  400. 


96  FORMS    OF    COMPLAINTS. 

No.  370. 

ii.     Against  Physician,  for  Maltreatment. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is,  and  since  the  ....  day  of 

,  187.,  has  been  a  physician,   and   that  the 

plaintiff,  at ,  in  4he  month  of ,  187 ., 

emj^yed  him  as  such,  to   cure  him  of  a  malady  from 
whicn  he  then  suffered,  for  compensation  to  be   paid 
therefor,  and  for  that  purpose  he  undertook  as  a  physi- 
cian to  attend  and  cure  the  plaintiff. 

II.  That  the  defendant  entered  upon  such  employ- 
ment, but  did  not  use  due  and  proper  care  or  skill  in 
endeavoring  to  cure  the  plaintiff  of  the  said  malady,  in 
this :   the  defendant  did  not  \_here  state  what  defendant 

failed  to  do  that  he  should  have  done,  or  what  he  did 
that  he  should  not  have  done~\. 

III.  That  by  reason  of  the  several   premises,  the 
plaintiff   was    injured  in    his    health  and    constitution, 
suffered  great  pain,  was  weakened  in  body,  and  was 

obliged  to  and  did  expend  the  sum  of dollars, 

in  endeavoring  to  be  cured  of  the  said  sickness,  which 
was  prolonged  and  increased  by  the  said  unskilful  and 
improper  conduct  of  the  defendant. 

[Demand  of  Judgment^ 

69.  Implied  Promise. — The  employment  of  a  physician  in 
this  country  raises  an  implied  promise  to  pay  for  his  services.  The 
plaintiff  in  an  action  for  malpractice  may  allege  that  defendant  was  a 
physician,  and  as  such  was  called  on  by  the  plaintiff,  and  undertook  as 
such  to  adminster  medicines,  etc.  This  is  sufficient  to  raise  a  duty  of 
skill  and  care  on  his  part.  Peck  v.  Martin,  17  Ind.  (Kerr)  115. 


PERSONAL    INJURY    BY   NEGLIGENCE.  97 

JVo.  371. 

iii.    Against  Surgeon,  for  Malpractice. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  187 .,  the 

plaintiff  by  accident  broke  his  leg. 

II.  That  he  then  employed  the  defendant,  who  sis  a 
surgeon,  as  such  surgeon,  for  reasonable  reward  to  be 
paid  therefor,  to  set  and  heal  the  same. 

III.  That  the  defendant  so  negligently  and  unskill- 
fully  conducted  himself,  in  attempting  to  set  said  leg  of 
the    plaintiff,    that    [here    state    the    consequences,    as, 
inflammation  ensued,  and  the  plaintiff  was  compelled  to 
have  his  leg  amputated]. 

IV.  That  by  reason  of  said  negligence  and  unskill- 
fulness,  the  plaintiff  was  made  sick,  and  was  kept 

months  from  attending  to  his  business  as 

[engineer],  and  was  compelled  to  pay  and  did  pay 

dollars  expense  for  nursing,  and  is  permanently 

a  cripple. 

[Demand  of  Judgment. ~\ 


CHAPTER  VII. 

FOR    VIOLATION    OF    PERSONAL    RIGflTS. 

No.  372. 

i.    Against  Officers  of  an  Election,  for  Refusing  Plaintiff's  Vote. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   the   defendants    were    the    inspectors   and 
judges  of  an  election  held  at ,  in  and  for  the 

precinct    in  the   City   of   ,   for  the 

purpose  of  electing  [state  what  officers],  and  being  duly 
appointed  and  qualified  as  such  inspectors  and  judges, 
the  defendants  had  the  polls  open  for  said  election  at 

No ,    Street,   [or  at  the  school  house] 

in  said  town  [or    city],    between    the    hours  of  .... 
and 

II.  That  the  plaintiff  then  was,  and  for  the  space  of 

months  had  been  a  citizen  of  the   State  of 

,  and  then  was  and  for  the  space  of 

days  had    been  a  resident   in   said  town   [or  ward,  or 
otherwise,  according  to  the  statute],  and  was  a  legal 
elector  at  said  election  [or  that  the  plaintiff   was  regis- 
tered in  the  grand  register  of  the  City  and  County   of 

,  and  was  enrolled  on  the  poll  lists  of  the  said 

precinct]. 

III.  That   as  such   elector,  the  plaintiff,  while  the 


VIOLATION    OF    PERSONAL  -RIGHTS.  99 

polls  were  so  open,  duly  offered  to  the  defendants  his 

vote  or  ballot  for  the  election  of ,  in  and  for 

said  town,  and  requested  them  to  receive  the  same. 

IV.  That  the  defendants,  not  regarding  their  duty, 
wrongfully  refused  to  receive  or  deposit  the  same, 
although  they  and  each  of  them  then  well  knew  he  was 
a  qualified  voter,  whereby  he  was  deprived  of  his  vote 
at  said  election. 

[Demand  of  Judgment '.] 

1.  Facts  must  be  Alleged. — In  an  action  for  refusing  plaintiffs 
vote,  the  particular  facts  upon  which  plaintiffs  right  to  vote  depends, 
must  be  alleged.     Curry  v.  Cobliss,  37  Mo.  330. 

2.  Malice. — The  averment  of  malice  is  unneccessary.     Jeffries  v. 
Anthony,    n    Ohio,    372;   Thatcher  v.  Hawk,   Id.    376;    Lincoln   v. 
Hapgood,  n  Mass.  350;  Cossen  v.  Foster,  12  Pick.  485;    Osgood  v. 
Bradley,  7  Greenlf.  Rep.  421. 

No.  373. 

ii.    For  Criminal  Conversation. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  A.  B.  is,  and  at  the  times  hereinafter  men- 
tioned was,  the  wife  of  the  plaintiff. 

II.  That  on  or  about  the  ....  day  of ,  187. 

\the  day  or  about  the  day  the  first  act  of  aditltery  can  be 

proved^,  and  on  other  days  after  that  day,  defendant 
wrongfully  contriving  and  intending  to  injure  the  plaintiff, 
and  to  deprive  him  of  the  comfort,  society,  aid  and 
assistance  of  his  wife  [forcibly  and  without  the  consent 
of  the  said  A.  B.],  wickedly,  willfully,  and  maliciously 
debauched  and  carnally  knew  the  said  A.  B.,  without  the 
privity  or  consent  of  the  plaintiff. 


IOO  FORMS   OF    COMPLAINTS. 

III.  That  by  means  of  the  premises,  the  affection 
which  the  said  A.  B.  theretofore  had  for  the  plaintiff  was 
alienated  and  destroyed,  and  the  plaintiff  was  deprived 
of  the  comfort,  society,  aid  and  assistance  which  he 
otherwise  would  have  had  from  the  said  A.  B.,  and  has 
suffered  great  distress  of  body  and  mind,  to  his  great 
damage dollars. 

[Demand  of  Judgment. \ 


3.  Character  of  Action. — An  action  by  the  husband,  for  crim. 
con.,  is  an  action  for  injury  to  person,     i  Chitt.  PI.  137;  2  Id.  265;  2 
Kent,  129;  3  Blackst.  Com.  138;  Delamater  v.  Russell,  4  How.  Pr.  234; 
2  Code  R.  147. 

4.  Contriving'    and   Intending. — The   intention  is  material. 
Hutcheson  v.  Peck,  5  Johns.  196. 

5.  Marriage. — In  an  action  for  criminal  conversation,  the  plaintiff 
must  prove  an  actual  marriage.      4  Burr.  2,057;  Peake's  Law  of  Ev. 
300;  Phil,  on  Ev.  ('jth  Ed.}  206;  Selw.  N.  P.  14,  16;  see,  also,  2  Chitl. 
PI  643,  n./. 

6.  Without  Privity  or  Consent  of  Plaintiff:— See   Smith 
v.  Hasten,  15  Wend.  270. 


JVo.  374 

iii.    For  Enticing  Aivay  Plaintiff's  Wife. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  A.  B.  is,  and  at  the  times  hereinafter  men- 
tioned was,  the  wife -of  the  plaintiff. 

II.  That  on  or  about  the  ....  day  of ,  187 . , 

while  the  plaintiff  was  living  and  cohabiting  with  and 
supporting  her,  at ,  and  while  they  were  living 


VIOLATION    OF    PERSONAL    RIGHTS.  IOI 

together  happily  as  man  and  wife,  the  defendant,  wrong- 
fully contriving  and  intending  to  injure  the  plaintiff, 
and  to  deprive  him  of  her  comfort,  society,  and  assist- 
ance, maliciously  enticed  her  away  from  the  plaintiff's 
and  her  then  residence  in ,  to  a  separate  resi- 
dence in ,  and  has  ever  since  there  detained 

and  harboured  her,  against  the  consent  of  the  plaintiff. 

III.  That  by  reason  of  the  premises,  the  plaintiff  has 
been  and  still  is  wrongfully  deprived  by  the  defendant 
of  the  comfort,  society,  and  aid  of  his  said  wife,  and  has 
suffered  great  distress  of  body  and  mind. 

[Demand  of  Judgment '.] 


7.  Allegation  that  Defendant  Knew. — In  an  action  for  de- 
bauching a  wife  or  servant,  it  is  not  necessary  to  allege  or  prove  that 
the  defendant   knew  that  the  female  was  the  wife  or  servant  of  the 
plaintiff;  though  in  an  action  for  seducing  away  or  harboring  a  wife  or 
servant,  such  allegation  and  evidence  are  necessary.     Peake  C.N.P.^; 
Peake's  Law  of  Ev.  134;    Willes,  577;    see  2  Chitt.  PL  642,  n.  e.;   see 
Hermance  v.  James,  32  How.  Pr.  142. 

8.  Form. — For  a  form  nearly  similar,  see  Scherpf  v.  Szadecky,  i 
Abb.  Pr.  366. 

No.  375. 

iv.   For  Debauching  a  Daughter. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  said  defendant,  unjustly  intending  to  injure 
said  plaintiff,  and  to  deprive  him  of  the  services  and 
assistance  of  the  daughter  and  servant  of  said  plaintiff, 

did,  on  the  ....  day  of ,  187 .,  and  on  divers 

other    days    between    that   day   and   the   commence- 


IO2  FORMS    OF    COMPLAINTS. 

ment  of  this  action,  debauch  and   carnally  know   the 

said ,  then  and  there,  and  before  and  since,  the 

daughter  and  servant  of  the  said  plaintiff;  whereby  the 

said became  pregnant  and  sick  with  child,  and 

so  remained  for  a  long  space  of  time,  to  wit,   for  the 
space  of  nine  months  thence  next  following;    at   the 

expiration  whereof  the  said was  delivered  of 

the  child  with  which  she  was  pregnant  as  aforesaid. 

II.   That  by  means  of  the  premises,  the  said 

for  a  long  space  of  time,  to  wit  [one  year],  was  unable 
to  do  the  needful  business  of  the  said  plaintiff,  he,  the 
said  plaintiff  so  being  the  father  and  master  of  the  said 
.........  and  the  said  plaintiff  lost  the  services  of  the  said 

during  all  that  time;   and  the  said  plaintiff 

was  put  to  great  expense,  and  did  pay  out  a  large  sum, 

to  wit,  the  sum  of dollars,  in   and  about  the 

nursing   and   taking   care    of    the   said ,    his 

daughter  and  servant,  and  in  and  about  the  delivery  of 

said    child,  to  his    damage    in    the  sum    of 

dollars. 

[Demand  of  Judgment.'] 


9.  Connivance. — The   connivance   of  the   father   in  the  act  of 
seduction  will  wholly  bar  his  action,  but  where  the  defense  is  omitted 
to  be  pleaded,  it  will  be  waived.     Travis  v.  Barge,  24  Barb.  614. 

10.  Daughter  Temporarily  Absent. — This  action  is  main- 
tainable, though  the  daughter  be  temporarily  absent  at  the  time  of  seduc- 
lion.     Lipe  v.  Eisenlerd,  32  N.Y,  229;  see  also  Vol.  i.,  p.  729. 

11.  Debauching  and  Beating   a  Daughter. — A  parent,   in 
that  character  merely,  cannot  support  an  action  for  debauching  or  beat- 
ing his  daughter,  which  is  only  sustainable  in  respect  of  the  supposed 
loss  of  service,  some  slight   evidence  of  which  must  in  general   be 
adduced.     5  East,  45;  5  T.  R.  360;  see  2  Chit.  PI.  643,  n.  9;  White  v. 
Nellis,  31  N.Y.  405. 


VIOLATION    OF    PERSONAL    RIGHTS.  103 

12.  Distress  of  Body  and  Mind. — The  fact  that  the  plaintiff 
has  suffered   great    distress   of  body  and  mind,  is  a  good   ground   of 
damages.     Dain  v.  Wycoff,  7  N.Y.  191. 

13.  Father,  Action  by. — A  father  may  maintain  an  action  for 
the  seduction  of  his  daughter,  under  twenty-one  years  of  age,  although 
she  was  not  living  with  him  at  the  time,  if  he  has  not  by  his  own  act 
destroyed  his  right  to  control  her  services.     (Greenwood  v.  Greenwood, 
28  Md.  369;    Lipe   v.   Eisenlerd,  32   N.Y.    229.)     So,  for  that   of  a 
daughter  over  twenty-one,  and  not  living  with  him,  if  he  thereby  loses 
actual  services  due  to  him;  and  services  rendered  will  be  presumed  to 
be  due  if  he  continues  to   exercise   authority   over   her,  and   she   to 
submit.     Sutton  v.  Huffman,  3  Vroom,  58. 

14.  Female    Seduced  Cannot    Maintain    Action. — The 

female    seduced    cannot  maintain  an  action  for  her  own  seduction. 
Hamilton  v.  Lomax,  26  Barb.  615;  6  Abb.  Pr.  142. 

15.  Full  Age. — A  father  may  maintain  an  action  for  seduction  of 
his  daughter,  who  resides  with  him,  and  performs  domestic  services  in 
return  for  support,   notwithstanding   she   is  of  full  age,  and   that   no 
express  agreement  exists  for  services.     2  7^7?.  166;  Id.  4;  n  East,  25; 
i    Barn.    &    C.    387;    2    Carr.   &  P.    303;    4  Cow.    412;   Lipe   v. 
Eisenlerd,  32  N.Y.  229. 

16.  Gist  of  Action. — The  loss  of  service  is  the  gist  of  the  action, 
and  the  master  can   alone   sustain  the  action.     If  the  daughter  is  not 
living  with  her  father,  he  cannot  sue  for  seduction.     Briggs  v.  Evans,  5 
Iredell  R.  16;  Hewit  v.  Prime,  21   Wend.  R.  79;  Martin  v.  Payne,  9 
J.  Rep.  387;  2  A.  K.  Marshall,  128;  7  Wend.  R.  193;  2  Id.  459. 

17.  Minor. — As  regards  a  minor,  it  seems  that  one  standing  in  loco 
parentis  has  a  right  to  maintain  an  action  for  seduction.     Bartley  v. 
Richtmeyer,  4  Comst.  38  (43);  Braey  v.  Kibbe,  31  Barb.  273. 

18.  Mother,  Action  by. — Such  action  may  be  maintained  by  a 
mother  keeping  a  boarding  house  on  her  separate  account,  though  the 
father  be  living  at  the  time.     Badgley  v.  Decker,  44  Barb.  577. 

19.  Nature  of  Action. — The  action  is  not  maintainable  by  a 
parent  as  such,  but  as  master,  entitled  to  services  of  child.     White  v. 
Nellis,  31  N.Y.  405. 


IO4  FORMS    OF     COMPLAINTS. 

20.  Stepfather. — A  stepfather  cannot  sue  for  seduction  of  his 
stepdaughter  while  living  in  the  service  of  another.  Bartley  v.  Richt- 
meyer,  4  Corns/.  38;  Braey  v.  Kibbe,  31  Barb.  273. 


No.  376. 

v.    For  Seduction  of  Plaintiff's  Daughter  or  Servant. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  one  A.  B. 
was  the  servant  [and  the  daughter]  of  the  plaintiff. 

II.  That  on  the day  of ,   187 .,  at 

,  the  defendant,  well  knowing  the  said  A.  B.  to 

be  the  servant    [and  daughter]    of  the   plaintiff,  and 
wrongfully    contriving   and    intending    to    injure    the 
plaintiff,  and  to  deprive  him  of  her  assistance  and  ser- 
vice,  did,  wickedly,  and  maliciously,  and  without  the 
privity  or  consent  of  the  plaintiff  [forcibly  and  against 
the  will  of  the  said  A.  B.,  abduct  her,  or  entice  and 
persuade  the  said  A.  B.  to  leave  the  residence  and  ser- 
vice of  this  plaintiff,  and  did]  then  and  there  debauch 
and  criminally  know  her. 

III.  That  by  reason  of  the  premises,  the  said  A.  B. 
became  pregnant  and  sick  with  child,  and  so  remained 

for  the  space  of months;  that  during  that  time 

she  was  unable  to  attend  to  the  duties  of  her  service, 
and  the  plaintiff  was  thereby  deprived  of  her  service, 

and  was  obliged  to  and  actually  did  expend 

dollars  in  nursing  and  taking  care  of  her  in  her  said 
pregnancy   and   sickness,  and    was  otherwise  greatly 
injured. 

{Demand  of  Judgment. \ 
NOTE. — This  form  is  from  Abbotts'  Forms. 


VIOLATION    OF     PERSONAL    RIGHTS.  IO5 

No.  377. 

vi.    For  Refusal  to  Permit  Passengers  to  Ride  in  Car. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the   defendant  is   a  corporation   organized 
under  the  laws  of  the  State  of 

II.  That  the  said  defendants  are  engaged,  and  have 
for  upwards  of  one  year  last  past  been  engaged  as 
common  carriers  of  passengers  by  railroad  for  hire,  from 

the  [south]  end  of Street,  along  said  Street 

to [or  otherwise  designate  the  route],  upon 

their  cars  drawn  by  horses. 

III.  That  heretofore,  to  wit,  on  the ....  day  of , 

187 .,  at ,  the  plaintiff  entered  and  went  upon 

one    of  the  passenger  cars  of  the   said    defendant  at 

Street,  at  the  corner  of Street,  for 

the  purpose  of  being  carried  by  said  defendant  upon 
and  in  said  car,  from  the  place  last  above  mentioned 

to Street,  at  the  corner  thereof  and 

Street,  in  said  City;  and  that  plaintiff  so  entered  and 
went  upon  said  car  with  the  knowledge  and  assent  of 
said  defendant  for  the  purpose  aforesaid,  and  then  and 
there  became  and  was  a  passenger  on  board  the  car 
last  aforesaid  of  said  defendant. 

IV.  That    immediately    after  this   plaintiff  had   so 

entered    and   upon  said  car,  at  said Street, 

at     the    corner    of    Street,    the    said    de- 
fendant, without  any  lawful  cause,  with  great  force  and 
violence,  and  at  a  place  other  than  a  usual  stopping 
place  for  said  defendant  for  leaving  passengers  whose 


106  FORMS   OF    COMPLAINTS. 

destination  was Street,  at  the  corner  thereof 

and Street,  ejected  and  turned  plaintiff  out 

of  and  off  from  said  car  which  she  had  so  entered 
and  went  upon,  and  then  and  there  declined  and 
refused  to  carry  or  transport  her  on  their  said  road,  and 
greatly  injured  this  plaintiff  in  her  person. 

V.  That   at   the   time    plaintiff    so    entered    upon 
said  car,  the  said  car  was  upon  a  trip  upon  defend- 
ant's said  road,  from  a  point  where  it  then  was  to  a 

point  upon  said  road  beyond  the  corner  of  said 

and Streets;  and  the  said  plaintiff  then  had 

in  her  possession  a  ticket  which  she  had  before  that 
time   purchased  of  defendant;     which    ticket    entitled 
plaintiff  to  be  received,  considered  and  conveyed  as  a 
passenger  upon  the  cars  of  defendant,  upon  their  said 
railroad,  and  upon  the  said  car  upon  which  she  had  so 
taken  passage  as  aforesaid,  which  it  was  the  intention 
then  and  there,  of  this  plaintiff,  to  give  over  unto  the 
defendant's  conductor  of  the  car  last  aforesaid,  in  pay- 
ment of  her  fare  as  such  passenger. 

VI.  That  by  means  of  the  premises  this  plaintiff  has 
sustained  damages  to  the  amount  of dollars. 

[Demand  of  Judgment^ 


21.  Additional  Fare. — Railroad  passengers  who  have  not  pur- 
chased   tickets  before    entering   the   cars,    having   had  a  reasonable 
opportunity  to  do  so,  may  be  charged  a  larger  fare,  and  be  ejected  for 
refusal  to  pay.     St  Louis,  Alton,  and  Terre  Haute  R.R.  Co.  v.  South,  43 
HI.  176;  see  Chicago  and  Alton  R.R.  Co.  v.  Flagg,  Id.  364;  and  111. 
Cent.  R.R.  Co.  v.  Sutton,  42  ///.  438. 

22.  Bound  to  Carry  Passenger. — If  a  passenger  is  ready  and 
willing,  and  offers  to  pay  the  legal  fare  when  demanded  by  the  conductor, 
the  railroad  company  is  bound  to  carry  him,  provided  there  is  room 


VIOLATION    OF    PERSONAL    RIGHTS.  1 07 

and  the  passenger  is  a  fit  person  to  be  admitted.     Tarbell  v.  Cent.  P. 
R.R.  Co.,  34  Cat.  616. 

23.  Legal  Tender  Notes. — A  railroad  company  is  not  justified 
in  refusing  to  convey  a  passenger  already  admitted  into  its  cars,  and  the 
journey  is  commenced,  who  upon  demand  of  his  fare,  tenders  only 
legal  tender  notes  in  payment.    (Tarbell  v.  Cent.  P.  R.R.  Co.,  34  Cal. 
6 1 6.)     Railroad  fares  are  not  taxes,  and  do  not  fall  within  the  rule  in 
Perry  v.  Washburn,  20  Cal.  318;  approved  in  Tarbell  v.  C.  P.  R.R.  Co., 
34  Cal.  6 1 6. 

24.  Inability  of  Principal. — The  rule  is  well  established  that 
the  principal  is  liable  for  actual  damage  resulting  from  the  malfeasance, 
negligence,  or  torts  of  his  servant  or  agent,  in  the  course  of  his  employ- 
ment, within  the  scope  of  his  agency,  unless  expressly  authorized,  or 
unless  adopted  by  the  principal.    (Turner  v.  N.  B.  and  M.  R.R.  Co.,  34 
Cal.  599;  Wright  z>.  Wilcox,  19  Wend.  343.)    Hence  it  is,  the  principal 
is  never  liable  for  the  unauthorized  or  willful  or  malicious  acts  of  his 
servants  or  agents,  done  without  his  authority,  and  not  subsequently 
adopted  by  him.     Turnery.  N.  B'.  and  M.  R.R.  Co.,  34  Cal.  599;  see, 
also,  Phil,  and  Redding  R.R.  Co.  v.  Derby,  14  How.  U.S.  486;  Hagan 
».  Prov.  and  Wore.  R.R.  Co.,  3  R.I.  88,  486;  Wells  v.  N.Y.  Cent.  R.R. 
Co.,  24  N.F.  183,  184;  Weed  v.  Pan.  R.  Co.,  17  N.Y.  362;    South- 
wick  v.  Estes,  7   Cush.  385;  Mill,  and  Miss.  R.R.  Co.  v.  Finney,  10 
Wis.  388. 

25.  Measure   of  Damages. — In  case  of  the  refusal  of  a  con- 
ductor to  receive  a  passenger  on  the  street  cars,  plaintiff  is  entitled  to 
nominal  damages,  even  in  the  absence  of  proof  of  any  actual  damage. 
(Pleasants  v.  N.  B.  and  M.  R.R.  Co.,  34  Cal.  586.)     Where  no  special 
damage  was  alleged  or  proved  by  the  plaintiff  for  breach  of  a  railroad 
passenger  contract,  and  the  evidence  was  only  that  he  was  put  out  of  the 
car  at  a  point  about  twelve  miles  from  his  destination,  and  five  miles 
from  the  place  of  departure :  Held,  that  a  verdict  of  five  hundred  dollars 
damages  was  greatly  disproportionate  to  the  injury  proved  within  the 
rule  of  Aldrichz;.  Palmer,  24   Cal.  513;  Tarbell  v.  C.  P.  R.R.  Co.  34 
Cal.  6 1 6. 

26.  Refusing  Baggage. — A  railway  company  refused  to  carry 
free  of  charge  a  "  spring  horse"  (substitute  for  a  rocking  horse,)  weigh- 
ing 78  pounds,  and  being  forty- four  inches  long,  for  a  passenger  who 
was  entitled  to  take  with  him  112  pounds  weight  of  "ordinary"  or 


IO8  FORMS   OF     COMPLAINTS. 

"  personal"  luggage.     Held,  that  the  company  had  a  right  to  make  an 
additional  charge.     Hudston  v  Midland  R.R.  Co.,  L.  R.  4  Q.  B.  366. 

27.  Surrender  of  Ticket. — If  a  passenger  refuses  to  surrender 
his  ticket  to  the  conductor  of  a  train  when  called  for,  as  required  by  the 
rules  of  the  company,  he  may  be  put  off  at  any  place  not  selected  as 
dangerous  or  inconvenient,  and  this  although  the  company  is  forbidden 
by  statute  to  expel  a  passenger  for  non-payment  of  fare  except  at  a  reg- 
ular station.     Illinois  Cent.  R.R.  Co.,  v.  Whittemore,  43  ///.  420;  see 
Chicago  and  Alton  R.R.  Co.  v.  Flagg,  Id.  364. 

28.  Tender  of  Fare. — In  an  action  to  recover  damages  against 
a  common  carrier  for  refusal  to  carry  a  passenger,  it  is  not  necessary  to 
allege  a  tender  of  the  fare.      It  is  sufficient  to  allege  that  plaintiff  was 
ready  and  willing  to  pay  the  defendant  such  sum  of  money  as  it  was 
legally  entitled  to  charge.     Tarbell  v.  Cent.  P.  R.R.  Co.,  34  Cal.  616. 

29.  Ticket  Issued  for  Previous  Day. — Plaintiff  was  ejected 
from  a  car  for  refusing  to  pay  for  his  passage  except  by  a  ticket  issued 
on  a  previous  day,  and  marked  "good  for  this  day  only;"  he  then 
showed  a  good  ticket,  and  attempted  to  enter  the  car,  which  he  was 
forcibly  prevented  from  doing:   Held,  that  his  exclusion  was  justifiable. 
State  v.  Campbell,  3  Vroom,  309. 


COMPLAINTS — SUBDIVISION  FIFTH. 

For  Damages  upon    Wrongs. 


PART  SECOND— FOR  INJURIES  TO  PROPERTY. 
CHAPTER  I. 

BAILEES. 

No.  3  7  8. 

i.    Against  a  Bailee — Common  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    ....    day  of   ,  187 .,  the 

defendant  received  from  the  plaintiff  certain  goods,  and 
the  defendant  thereupon  gave  to  the  plaintiff  a  receipt 
for  the  same,  of  which  the  following  is  a  copy:    \_Copy 
receiptl\ 

II.  That  on  the  ......  day  of ,  187 .,  the 

plaintiff  demanded  of  the  defendant  that  he  deliver  said 
goods,  but  he  refused  to  do  so. 

[Demand  of  Judgment.  \ 


1.  Bailee  is  not  used  in  the  limited  sense  "to  keep,  to  transfer, 
or  to  deliver,"  as  in  yist  Section  of  the  Act  of  1850,  concerning  crimes 
and  punishments.  People  v.  Poggi,  19  <?<7/.  600. 


IIO  FORMS    OF    COMPLAINTS. 

52.  Bailees,  Who  are. — When  a  redemptioner  pays  an  excess  of 
money  to  the  sheriff,  the  sheriff  is  bailee  of  the  redemptioner  as  to  the 
excess,  who  may  recover  it  back  on  demand,  it  not  having  been  paid 
over  to  the  redemptioner.  McMillan  v  Vischer,  14  Cal.  232. 

3.  Bailor,  Liabilities  of. — A  man  may  steal  his  own  property,  if 
by  taking  it  his  intent  be  to  charge  a  bailee  with  the  property,  and  thus 
impose  a  loss  on  him.     People  v.  Stone,  16  Cal.  369;  People  v.  Cohen, 
8  Cal.  42. 

4.  Delivery  to  Wrong  Person. — Where  property  is  not  put  in 
a  bailee's  charge  by  the  owner,  but  comes  into  his  possession  through  the 
owner's  neglect,  and  where  he  may  not  know  to  whom  it  belongs  or 
by  whom  it  was  left,  he  should  not  be  responsible  for  delivering  it  to 
the  wrong  person,  if  he  has  exercised  all  the  care  that  could  be  reason- 
ably expected  of  him  under  the  circumstances.     Morris  v.  Third  Av. 
R.R.  Co.  i  Daly,  202. 

5.  Demand. — When  a  bailee  disclaims  his  relation  to  the  bailor 
he  cannot  claim  the  right  to  require  a  demand  for  the  money  before 
interest  is  charged  against  him.     Dickinson  v.  Owen,  n  Cal.  71. 

6.  Goods  Deposited. — A  depository  with  whom  goods  have  been 
stored  by  one  confessedly  acting  as  an  agent,  must  deliver  them  to 
principal  on  his  demand,  notwithstanding  the  agent  forbids  him  to  do 
so.     Ball  v.  Liney,  44  Barb.  505. 

7.  Law  of  Louisiana. — Under  the  law  of  Louisiana,  there  are 
two  kinds  of  pledges,  the  pawn  and  the  antichresis.     A  thing  is  said  to 
be  pawned  when  a  movable  is  given  as  a  security;  the  antichresis  con- 
sists of  immovable  objects.     Livingston  v.  Story,  n  Pet.    351. 

8.  Lien    on    Goods. — A  common   carrier  or  innkeeper  has  a 
lien  on  the  property  for  his  reasonable  and  just  charges  therefor,  but 
one  who  merely  provides  food  as  an  agister,  or  a  livery  stable  keeper, 
has  no  lien  on  the  property  unless  there  is  a  special  agreement  to  that 
effect.     Lewis  v.  Tyler,  23  Cal.  364. 

9.  Note  as  Security. — When  a  promissory  note  is  assigned  as 
collateral  security  for  a  debt,  and  no  special  contract  is  made,  the  con- 
tract rights,  duties  and   liabilities  are  the  same  as  in  the  case  of  the 
assignment  of  a  note  for  value,  except  in  one  respect,  which  is  that  the 
assignee  undertake  to  pay  to  the  assignor  the  overplus  that  he  may  • 


AGAINST    BAILEES.  Ill 

receive  On  the  collateral  after  the  satisfaction  of  the  principal  debt. 
Donohue  v.  Gamble,  Cal.  Sup.  Ct.,  Jul.  7'.,  1869. 

10.  Notice  of  Sale  of  Pledge. — The  notice  of  the  sale  of  the 
pledge  should  apprise  the  pledger  of  the  time  and  place  of  sale;  as  the 
object  is  not  that  the  notice  should  operate  as  a  demand,  but  that  the 
pledgor  should  be  enabled  to  bid  at  the  sale,  or  procure  a  good  bid  to 
be  made,  etc.     See  Brown  v.  Ward,  3  Duer,   660 ;    Castello  v.  City 
Bank,   i  N.Y.  Leg.  Obs.  25;  Willoughby  v.  Comstock,  3   Hill,  389; 
Tucker  v.  Wilson,  i  Bro.  P.C.  494;  S.C.,  i  P.  Wms.  261;  Lewis  v. 
Graham,  4  Abb.  Pr.  106. 

11.  Personal   Property. — Personal   property  may  be   pledged, 
mortgaged,  hypothecated,  or  placed  in  trust,  upon  such  terms  and  con- 
ditions as  the  parties  may  agree  upon,  and  courts  of  law  will  be  governed 
by  the  language  of  the  contract  in  each  particular  case.     Hyatt  v. 
Argenti,  3  Cal.  151. 

12.  Pledge.— Property  pledged  to  the  keeper  of  a  brothel  to  secure 
payment  for  wine,  etc.,  consumed  in  a  debauch  in  said  brothel,  canngt 
be  recovered  of  the  pledgor  by  the  pledgee.     Taylor  v.  Chester,  L.  R. 
4  Q.  B.  309. 

13.  Pledgee's  Responsibility. — A  pledge  is  a  bailment  which 
is  reciprocally  beneficial  to  both  parties,  and  therefore  the  law  requires 
of  the  pledgee  the  exercise  of  ordinary  diligence  in  the  custody  or  care 
of  the  goods  pledged,  and  he  is  held  responsible  for  ordinary  negligence. 
St.  Losky  v.  Davidson,  6  Cal.  643. 

14.  Power  to  Sell  Pledge. — A  party  depositing  securities  for 
securing  the  payment  of  a  debt,  or  advances  made  thereon,  may  agree 
that  they  shall  be  sold  at  the  option  or  pleasure  of  the  creditor.     (Hyatt 
v.  Argenti,  3   Cal.  151.)     A  sale  made  under  such  authority  is  good 
without  notice  to  the  plaintiff  of  the  time  and  place  of  such  sale  or 
previous  demand  of  payment;  but  if  no  such  agreement  be  made,  the 
sale  can  be  made  only  on  notice  to  the  pledgor.     (7  y.  J.  Marsh,  322; 
Stearns  v.  Marsh,  4  Den.  227;  2  Kenfs  Comm.  749;  De  Lisle  v.  Priest- 
man,  i  Browne  (Pa.)  176;  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  62.)    And  if 
not  otherwise  agreed,  the  sale  must  be  at  public  auction.     (Costello  v. 
Cty.  Bank,  i  N.  Y.  Leg.  Obs.  2  5 ;  Jones  v.  Thurmond,  5  Tex .  318;  Ran- 
kin  v.  McCullough,  12  Barb.  103.)     In  California,  the  pledgee  is  not 
authorized  to  sell  the  pledge  without  calling  on  the  pledgor  to  redeem, 


I  1 2  FORMS    OF     COMPLAINTS. 

and  giving  him  reasonable  notice  of  his  intention  to  sell.  '  (Gay  v . 
Moss,  34  Cal.  125.)  And  where,  without  calling  on  the  pledgor  to 
redeem,  the  pledgee  sold  the  pledge  (a  chose  in  action),  it  was  a  conver- 
sion of  the  pledge,  and  plaintiff  might  recover  its  value  at  the  time  of 
its  conversion,  in  excess  of  the  demand  secured  by  the  pledgee.  Gay 
v.  Winter,  34  Cal.  125. 

15.  Title  to  Pledged  Property. — A  pledge  does  not  vest  the 
title  in  the  pledgee.     He  has  only   a  special  property  in  or  lien  on  the 
chattel   pledged,  and  if    the  pledge    is   not  redeemed   by  the   time 
limited  it  retains  the  character  of  a  pledge  still.     Heyland  v.  Badger; 
35  Cal  404. 

16.  Use  of  Money. — An  attaching  creditor  of  the  bailee,  levying 
on  the  money  in  the  hands  of  a   stockholder   with  whom  it  had  been 
deposited  by  the  bailee,  cannot  claim  that  the  bailor  is  estopped  by 
having  allowed  the  bailee  to  use  the  money  in  his  own  name,  when 
the    specific    money  was   in   question   and   could   be   distinguished. 
Hardy  v.  Hunt,  1 1  Cal.  343. 


No.  379. 

ii.   For  Injury  to  Pledge. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,   187 .,  the 

plaintiff  delivered  to  the  defendant   [describe  articles] , 

the  property  of  this  plaintiff,  of  the  value  of 

dollars,  as  a  pledge  to  the  defendant,  to  secure  the  sum 
of dollars,  theretofore  loaned  by  the  defend- 
ant to  the  plaintiff,  which  articles  the  defendant  received 
for  that  purpose,  and  agreed  with  the  plaintiff  to  take 
good  care  of  the  same  until  they  should  be  redeemed 
by  plaintiff. 

II.  That  the  defendant  so  negligently  conducted  in 
respect  to  said  articles,  and  so  carelessly  used  the  same, 


AGAINST    BAILEES.  113 

that  they  became,  by  reason' of  his  negligence  and  care- 
lessness, greatly  damaged  \state  injury\,  and  were 
rendered  of  small  value  to  the  plaintiff. 

\Demand  of  Judgment^ 


No.  380. 

iii.   For  Loss  of  Pledge. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,   18 .  . ,  at 

,  the  plaintiff  delivered  to  the  defendant  [de- 
scribe articles],  the    property  of  this  plaintiff,  of  the 
value  of dollars,  by  way  of  pledge  to  the  defend- 
ant, to  secure  the  sum  of dollars  theretofore 

loaned  by  the  defendant  to  the  plaintiff,  which  articles 
the  defendant  received  for  that  purpose,  and  agreed  with 
the  plaintiff  to  take  good  care  of  the  same  until  they 
should  be  redeemed  by  the  plaintiff. 

II.  That  the  defendant  has  failed  to  fulfill  said  agree- 
ment on  his  part,  and  on  the  contrary  so  negligently 
and  carelessly  kept  said  articles,  that  while  they  were  in 
his  possession  for  the  purposes  aforesaid,  they  were 
through  his  negligence  lost. 

[Demand  of  Judgment. ,] 


114  FORMS    OF    COMPLAINTS. 


,.  381. 

iv.     For  not  Taking  Care  of  and  Returning  Goods. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on    the  .....  day  of  .........  ,    1  8  .  .  ,  at 

........  ,  the  plaintiff  delivered  to  the  defendant  [de- 

scribe the  articles],  of  the  value  of  ........  dollars,  to 

be  by  the  defendant  safely  and  securely  kept  for  the 
plaintiff  [for  a  compensation],  and  to  be  returned  and 
re-delivered  to  the  plaintiff  on  request,  which  the  defend- 
ant then  and  there  promised  and  undertook  to  do. 

II.  That  the  plaintiff  performed  all  the   conditions 
thereof  on  his  part,  and  on  the  ....  day  of  ........  , 

18.  .  ,  requested  the  defendant  to  re-deliver  said  goods. 

III.  That  the  defendant  did  not  take  due  care  of  and 
safely  keep  the  said  goods  for  the  plaintiff,  nor  did  he, 
when  so  requested,  or  afterwards,  or  at  all,  re-deliver 
the  same  to  the  plaintiff;  but,  on  the  contrary,  the  de- 
fendant so  negligently  and  carelessly  conducted  himself 
with  respect  to  the  said  goods,  and  took  so  little  care 
thereof,  that  by  and  through  the  carelessness,  negligence, 
and  improper  conduct  of  the  defendant  and  his  servants, 
the  goods  were  wholly  lost  to  the  plaintiff. 

[Demand  of  Judgment,  .] 


AGAINST    BAILEES.  I  I  5 

No.  382". 

i.     Against  Hirer  of  Chattels,  for  not  Taking  Proper  Care  of  ttem. 
[TrrLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on    the day  of ,  •  1 8  .  . ,  at 

,    the    defendant   hired   and   received  of  the 

plaintiff  certain  furniture  \briefly  designate  the  same] ,  of 

the  value  of dollars,  for  the  period  of 

then  next  ensuing,  at  the  sum  of dollars  per 

month. 

II.  That   the   defendant  did   not  take  proper  care 
of   the   said   furniture,  or  use  the   same  in  a   reason- 
able or  proper  manner  duririg  the  said  time,  but  took 
so  little  care  thereof  that  they  became  injured  and  de- 
teriorated in  value. 

[Demand  of  Judgment. ,] 

JVo.  383. 

ii.   For  Injury  to  Horse,  Resulting  from  Immoderate  Driving. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on    the  ....  day   of ,   1 8 .  . ,   at 

,  the  defendant  hired  and  received  from  the 

plaintiff  a  horse  to  drive,  which  was  of  the  value  of 
dollars. 

II.  That  the  defendant  drove  the  horse  so  hard,  and 


I  1 6  FORMS    OF    COMPLAINTS. 

so  neglected  the  care  of  him,  that  the  said  horse  after- 
wards, on  the  ....   day  of ,   187 .,  died   [or 

otherwise  state  the  injury]. 

[Demand  of  Judgment '.] 

No.  384. 

iii.   For  Driving  Horse  on  a  Different  Journey  from  that  Agreed. 

[TITLE.] 
The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,    187 .,   at 

,  the  defendant  hired  and  received  from  the 

plaintiff  a  horse  and  carriage,  of  the  value  of 

dollars,  the    property  of  the    plaintiff,   to    drive    from 
to  . ,  and  not  elsewhere. 

II.  That  the  defendant,  in  violation  of  the  agreement, 
performed  a  different  journey  than  that  aforesaid,  and 
drove  said  horse  and  carriage  from  ........  to      

III.  That  he  did  not  take  proper  care  of  said  horse 
and  carriage,  but  so  negligently  drove  and  managed  the 
same  that  the  carriage  was  broken,  to  the  damage  of 
plaintiff  in dollars. 

\Demand  of  Judgment.] 


AGAINST    BAILEES.  I  I  7 

No.  385. 

i.    Against  Innkeeper,  for  Loss  of  Baggage. 
[TITLE.] 

The  plaintiff  complains,  and  alleges:         • 

I.  That  at  the  times  hereinafter  mentioned,  the  de- 
fendant was  the  keeper  of  a  common  inn  in  the  City  of 

,  known  as  "  the Hotel." 

II.  That  on  the    ....  day  of ,    187.,  this 

plaintiff  was  received  by  the  defendant  into  his  said  inn 
as  a  traveler,  together  with  his  baggage,  consisting  of 

,  of  the  value  of dollars  \ffere  describe 

articles^  the  property  of  the  plaintiff. 

III.  That  the  defendant  and  his  servants  so  negli- 
gently and  carelessly  conducted  themselves  and  misbe- 
haved in  regard  to  the  same,  that  while  he  so  remained 
at  said  inn,  his  said  trunk  was  taken  away  from  the 
room  of  the  plaintiff,  by  some  person  or  persons  to  the 
plaintiff  unknown;   and  thereby  the  same  was  wholly 
lost  to  the  plaintiff. 

\Demand  of  Judgment.} 


18.  At  Cosamon  Law. — To  hold  a  party  liable  at  common  law 
for  the  loss  of  goods  at  his  inn,  it  must  appear  not  only  that  he  kept  an 
inn  and  that  the  goods  were  lost  there,  but  that  he  was  acting  in  the 
capacity  of  innkeeper  when  the  goods  were  received,  and  that  the 
owner  was  his  guest.     Carter  v.  Hobbs,  12  Mich.  52. 

19.  Delivery  not  Necessary. — A  delivery  of  the  goods  to  the 
innkeeper  is  not  necessary  to  charge  him  with  them.     The  innkeeper  is 
bound  to  pay  them  in  any  event,  if  stolen  or  carried  away,  even  though 
the  person  who  took  them  away  is  unknown.     Burrows  v.  Trieber,  21 
Md.  320. 


I  1  8  FORMS    OF    COMPLAINTS. 

20.  Exception. — An  innkeeper  is  liable  for  all  loss  or  damage  to 
the  goods  of  his  guests  occurring  while  they  are  in  his  possession,  except 
when  such  loss  or  damage  is  occasioned  by  the  act  of  God  or  the  public 
enemy,  or  through  the  fault  of  the  owner.     Hulett  v.  Swift,  42  Barb. 
230. 

21.  Goods. — Innkeepers  are  liable  for  the  goods  of  a  guest  which 
are  brought  by  Trim  within  the  inn.     Burrows  v.  Trieber,  21  Md.  320. 

• 

22.  Delivery. — As  to  the  extent  of  his  liability  for  articles  of 
jewelry  in  usual  wear,  and    for  money,   Gile  v.  Libby,  36  Barb.  70; 
Wilkinis  v.  Earle,  1 9  Abb.  Pr.  1 90. 

23.  Liable  as  Insurer. — Innkeepers  are   liable  as   insurers  of 
their  guests'  property.     (Hulett  v.  Swift,  33  N.Y.  571;.  affirming  S.C., 
42  Barb.   230;    Gile  v.  Libby,   30  Barb.   70.)     But  not  when  guest, 
after  being  dub/  warned,  neglects  any  necessary  precaution.     Wilson  v. 
Halpin,  i  Daly,  496;  30  How.  Pr.  124. 

24.  Neglect  to  Disclose  Value  of  Package. — As  to  effect 
of  omission  of  guest  to  disclose  value  of  package  committed  or  offered 
to  be  committed  to  innkeeper's  charge,  see  Watkins  v.  Earle,  19  Abb. 
Pr.  190;  Bendetston  v.  French,  44  Barb.  31. 

25.  Not  a  Guest. — Innkeeper  is  only  liable  as  bailee  for  horse  of 
person  not  his  guest  but  lodging  elsewhere.     (Ingallsbee  v.  Wood,  33 
N.Y.  577;  affirming  S.C.,  36  Barb.  452.)     It  is  not  necessary  to  prove 
negligence  in  the  innkeeper  to  make  him  liable  for  the  boss.     Id. 


No.  386. 

4 

ii.    For  Loss  of  Pocht  Book.       t 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant,  at  the  time  hereinafter  stated, 
was  a  common  innkeeper  at 

I.    That   on   the    ....   day   of ,   18 .  . ,    he 

received  and  entertained  this  plaintiff  «as  a  guest  at  his 
inn  for  hire. 


AGAINST    BAILEES.  I  1 9 

« 

III.  That  while  the  plaintiff  was  then  and  there  his 
guest,  the  defendant  undertook,  for  compensation  paid 
him  by  the  plaintiff,  to  keep  safely  in  one  of  his  sleeping 
rooms  of  his  said  hotel  or  inn,  the  clothing  and  such 
articles  of  jewelry  and  valuables  as  the  plaintiff  then 
had  upon  his  person,  and  that  the  plaintiff  thereupon 
put  into  his  said  sleeping  room  in  said  hotel  or  inn  his 
clothing,  his  pocket-book  containing  money,  and  such 
other  property  as  is  usually  carried  upon  the  person,  of 

the  value  of dollars,  and  left  the  same  in  the 

possession  and  charge  of  the  defendant,  both  as  inn- 
keeper and  as  special  bailee  as  aforesaid. 

IV.  That  while  this  plaintiff  was  sleeping,  his  pocket 
book  and  money  were,  by  the  negligence,  carelessness, 
and  dishonesty  and  improper  management  of  the  defend- 
ant and  his  servants,  lost  and  stolen. 

VI.    That  the  amount  of  the  said  money  belonging 
to  the  plaintiff  so  lost  and  stolen,  while  the  same  was 

under   the    charge   of   the    defendant,    was    

dollars   in   gold   coin  of  the    United   States,  and   that 

the  plaintiff,  is  by  profession  \state  business\,  and   that 

said  sum  was  such  as  he  might  reasonably  and  properly 

*    carry  with   him    with   reference  to   his   circumstances 

and  business. 

[Demand  of  Judgment.} 

: 

No.  387. 

i.    Against  Warehouseman,  for  Injur**  to  Goods  by  Neglect  to  Obey 

•  Instructions. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....  day  of ,  1 8 . . ,  at , 

the  defendant,  in  consideration  of  the  sum  of 


I2O  FORMS    OF    COMPLAINTS. 

dollars,  then  and  there  paid  to  him  by  plaintiff,  agreed 

to  store  and  keep  safely  in  his  warehouse  at , 

the  following  goods,  the  property  of  the  plaintiff,  of  the 

value  of dollars,  consisting  of  \_here  designate 

goods],  for  the  term  of weeks  from  said  date, 

and  then  safely  to  deliver  said  goods  t©  plaintiff  at  his 
request,  and  then  and  there  received  said  goods  for  such 
purpose. 

II.  That  at  the  time  of  the  delivery  of  said  goods  to 
defendant,  the  plaintiff  informed  him  that  it  was  neces- 
sary to  the  preservation  of  said  goods  that  they  should 
be  handled  with  care. 

III.  That   the    defendant    negligently   allowed   the 
same  to  be  handled  without  care,  and  roughly  moved 
and  broken,  so  that  the  same,  through  the  negligence 
of  the  defendant   and   his    servants,  became   entirely 
ruined. 

[Demand  of  Judgment. \ 


26.  Burden  of  Proof. — When  goods  arrive  at  the  point  of  desti- 
nation, and  are  placed  in  the  warehouse  of  the  company,  its  liability  as 
warehousemen  commences,  and  from  that  time  it  is  bound  to  use  only 
ordinary  care  and  diligence  in  safely  keeping  and  delivering  the  goods. 
Jackson  v.  Sac.  V.  R.R.  Co.  23  Cat.  268. 

27.  Common    Carrier    or   Warehouseman. — In  an  action 
against  a  railroad  company  for  loss  of  goods  as  common  carriers,  where 
the  proofs  render  it  uncertain  whether  the  goods  are  lost  while  being 
transported,  or  after  being  deposited  in  the  warehouse,  and  there  is  no 
proof  of  want  of  ordinary  care,  the  judgment  will  be  reversed.     Jackson 
v.  Sac.  V.  R.R.  Co.  33  Cat.  268.  ;  ^. 

28.  Grain. — A  warehouseman  who  received  grain  of  another  for  the 
purpose  of  storage,  is  only  bound  to  ordinary  care  in  its  preservation. 
Myers  v.  Walker,  31  ///.  353. 

29.  Parties. — Warehousemen  occupying  a  private  "  bonded  ware- 


AGAINST    BAILEES.  121 

house,"  who  hold  goods  of  a  merchant  subject  to  the  lien  of  Government 
for  unpaid  duties,  under  the  Acts  of  Congress  of  1854  and  1862,  are 
liable  to  the  owner  in  an  action  for  a  loss  of  them,  without  joining  as  a 
defendant  the  revenue  officer  in  whose  custody  the  statute  declares  such . 
goods  to  be.  The  custody  intended  by  the  statute  is  a  guard  or  watch, 
and  not  legal  possession  for  all  purposes.  22  N.F.  370;  24  Id.  536; 
2  Blatchf.  121 ;  Schwerin  v.  McKee,  5  Rob.  404. 

30.  Removal   of  Goods. — When  the  bailors  agreed  that  the 
goods  should  be  stored  in  a  certain  warehouse  at  their  risk  and  expense, 
Held,  that  .their  removal  by  an  agent  of  the  bailees,  though  without 
their  knowledge,  charged  them  for  the  safe  keeping  of  their  goods  after 
their  removal,  and  that  they  were  responsible  for  any  damage  to  said 
goods,  caused  by  their  removal  to  an  insecure  or  improper  place  of 
storage.     St.  Losky  v.  Davidson,  6  Cal.  643. 

| 

31.  Waiver  of  Lien. — When  a  warehouseman  who  has  goods 
in  charge,  states  to  one  who  is  about  to  take  possession  of  the  same,  by 
a  legal  process,  that  he  has  no  charges  on  the  goods,  this  is  a  waiver  of 
the  warehouseman's  lien  for  charges,  if  any  he  had.     Blackman  v. 
Pierce,  23  Cal.  508. 

32.  Want  of  Care. — To  charge  a  railroad  corporation  as  ware- 
housemen, the  plaintiff  must  show  a  want  of  ordinary  care  on  their 
part  in  the  custody  of  the  goods.     Jackson  v.  Sac.  V.  R.R.  23  Cal.  268 


Wo.  388. 

ii.    For  Refusal  to  Deliver  Goods. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.    That  on  ....  day  of ,  1 8 .  . ,  at ,  . , 

the  defendant,  in  consideration  of  the  payment  to  him 

of   dollars   [or    cents  per   ton  per 

month],  agreed  to  keep  in  his  warehouse  [ tons 

of  wheat],  and  to  deliver  the  same  to  plaintiff  on  pay- 
ment of  the  said  sum. 


122  FORMS   OF    COMPLAINTS. 

II.    That  thereupon  the  plaintiff  deposited  with  the 
defendant  the  said  [ tons  of  wheat]. 

i    III.   That  on  the day  of ,  1 8 .  . ,  the 

plaintiff  requested  the  defendant  to  deliver  the  said 

goods,  and  tendered  him dollars  [or  the  full 

amount   of  storage   due   thereon],  but  the  defendant 
refused  to  deliver  the  same. 

[Demand  of  Judgment '.] 


33.  Property  of  Plaintiff. — Though  it  is  usual  to  aver  that  the 
goods  were  the  property  of  the  plaintiff,  we  do  not  deem  such  an  aver- 
ment necessary^  He  could  sue  in  his  own  name,  if  he  were  but  the  agent 
of  the  owner.  N.Y.  Code  Commrs. 


CHAPTER  II. 

COMMON    CARRIERS. 

JVo.  389. 

i.   Against  Common  Carrier,  for  Breach  of  Duty. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I  That  at  the  times  hereinafter  mentioned,  the 
defendant  was  a  common  carrier  of  goods  for  hire, 
between  the  places  hereinafter  named. 

II.  That  on  the day  of ,  18. .,  one 

A.  B.  delivered  to  the  defendant  certain  goods,  the 
property  of  the  plaintiff,  to  wit  [designate  the  goods], 
of  the  value  of dollars,  and  the  defendant,  as 


AGAINST    COMMON    CARRIERS.  123 

such  carrier,   received  the  same,  to  be  by  him  safely 

carried  to ,  and  there  delivered  to , 

for  a  reasonable  reward  to  be  paid  by therefor. 

III.  That  the  defendant  did  not  safely  carry  and 
deliver  said  goods;  but,  on  the  contrary,  so  negligently 
conducted,  and  so  misbehaved  in  regard  to  the  same,  as 
such'  carrier,  that  the  same  were  wholly  destroyed  and 
lost  to  the  plaintiff. 

[Demand  of  Judgment.} 


1.  Act  of  God. — The  breach  of  a  contract  to  navigate  on  a  river 
is  excused  if  caused  by  the  river's  freezing,  so  as  to  make  navigation 
impossible,  this  being  an  act  of  God.     That  the  contractor,  at  the  time 
of  making  the  contract,  had  reasons  which  were  equally  obvious  to  the 
other  party,  for  expecting  such  an  event,  does  not  alter  the  case.     Worth 
v.  Edmonds,  52  Barb.  40;  see  Note  24. 

2.  Bound  to   Safely  Transport. — As  common  carriers,  they 
are  bound  to  safely  transport  and  deliver  goods  to  the  point  of  their 
destination,  unless  the  same  are  lost  by  the  act  of  God  or  the  public 
enemy.     In  such  a  case,  the  burden  of  proving  that  they  are  thus  lost 
rests  upon  the   company.     Jackson   v.  Sacramento  V.  R.R.  Co.,  23 
Cal.  268. 

3.  Compelled   to  Act   as  Common  Carriers. — Under  the 
General  Railroad  Law,  all  railroads  are  compelled  to  act  as  common 
carriers,  for  the  conveyance  of  all  passengers  and  property  which  may 
come  to  their  road  for  that  purpose.     Contra  Costa  R.R.  Co.  v.  Moss, 
23  Cal.  322. 

4.  Concurrent  Negligence. — As  to  effect  of  concurrent  want 
of    due   care   on   part  of  owner,    see   Hamilton   v.  McPherson,    28 
N.Y.  72. 

5.  Connected  Routes. — Each  company  concurring  in  the  car- 
riage of  goods  on  a  connected  route,  is  liable,  even  though  part  of  joint 
route  be  out  of  State.     (Burtis  v.  Buffalo  State  Line  R.R.  Co.,  24  N.F. 
269;  Simmons  v.  Daw,  8  Bosw.  213;  McDonald  v.  Western  Trans- 


124  FORMS    OF    COMPLAINTS. 

portation  Co.,  34  N.Y.  497.)  The  above  rule  is  partially  relaxed  to  the 
effect  that  each  company  is  only  liable  for  carriage  of  the  goods  in 
the  condition  in  which  it  receives  them.  (Smith  v.  N.Y.  Central  R.R. 
Co.,  43  Barb.  225.)  A  railroad  company  which  for' a  consideration 
receives  the  cars  of  a  connecting  company  into  its  custody  and  control, 
and  draws  them  with  their  contents  over  its  own  road,  is  liable  as  a 
common  carrier  for  injuries  to  such  cars  during  their  transit  over  such 
road.  Vermont  and  M.  R.R.  Co.  v.  Fitchburg  R.R.  Co.,  14  All. ^462. 

6.  Degree    of   Care. — A   railroad   company   must  provide   all 
reasonable  precaution  to  protect  property  of  others,  and  it  must  also  be 
properly  used,  and  the  company  are  liable  for  carelessness.     They  are 
bound  to  exercise  a  degree  of  care  proportionate  to  the  danger.     Clarke 
v.  Cal.  Steam  Navigation  Co.,  9  Cal.  251. 

7.  Delivery. — Delivery  to  carrier  in  good  order  must  be  shown 
to  maintain  an  action  for  full   value.     Burden  of  proof  then   shifts. 
(Smith  v.  N.Y.  Central  R.R.  Co.,  43  Barb.  225.)     And  must  be  to  him 
or   his   authorized   agent.      Ball   v.    New   Jersey   Steamboat    Co.,    i 
Daly,  491- 

8.  Duties  as  Bailees. — Where  carriers  make  it  the  duty  of  their 
agents  by  general  regulation  to  take  charge  of  property  inadvertently 
left  in  their  cars,  and  provide  at  their  depot  a  place  for  its  safe  keeping, 
they  must  in  taking  charge  of  the  property  be  looked  upon  as  in  the 
light  of  bailees  for  hire,  who  are  bound  to  exercise  ordinary  care  and 
dilligence.     Ang.  on  Carr.  §§  75,  112,  131,  302;  Edw.  on  Bailments, 
35,  36;  26  Wend.  591;  7  Hill,  47;  Morris  v.  Third  Avenue  R.R.  Co., 
i  Daly,  202. 

9.  Essential  Averments. — The  complaint  contained  averments 
against  the  defendants  as  common  carriers,  and  the  action  was  for  dam- 
age done  to  merchandise  in  their  transportation:  Held,  that  it  was  indis- 
pensable for   the   plaintiff  to   prove  that   defendants   were   common 
carriers,  and  that  the  goods  were  delivered  to,  Aid  received  by  them  as 
such,  for  the   purpose  of  being  transported   for  hire.     Ringgold   v. 
Haven,  i  Cal.  116. 

10.  Injury  Remotely  Attributable. — A  common   carrier   is 
absolutely  liable  for  injury  remotely  atrributable  to  his  own  default, 
though  inevitable  accident  be  the  immediate  cause.     Michaels  v.  N.Y. 
Cent.   R.R.   Co.,  30   N.Y.  564;   Reed   v.  Spaulding,  30  N.F.  636; 
Merritt  v.  Earle,  29  N.Y.  115. 


AGAINST    COMMON    CARRIERS.  125 

11.  Insured. — It  would  seem  that  in  our  State,  the  common  car- 
rier  is  an  insurer  of  the    property  intrusted   to  him,  and   is  legally 
responsible  for  acts  against  which  he  cannot  provide,  from  whatever 
cause  arising — the  acts  of  God  and  the  public  enemy  alone  excepted. 
Hooper  v.  Wells,  Fargo  &  Co.,  27  Cal.  10. 

12.  Letters. — A  common  carrier  of  letters  enclosed  in  envelopes 
is  not  liable  for  any  loss   beyond  that  of  an  ordinary  letter,  unless 
informed  of  the  value  of  the  same  at  the  time  he  received  the  same. 
Hayes  v.  Wells,  Fargo  &  Co.,  23  Cal.  185. 

13.  Liability,  how   Terminated. — The  liability  of  a  carrier 
ceases,  and  he  becomes  an  ordinary  bailee,  on  refusal  of  consignee  to 
receive  the  goods.     (Hathorn  v.  Ely,  28  N.Y.  78;  Johnson  v.  N.Y. 
Cent.  R.R.  Co.,  33  N.Y.  610.)     Or  by  delivering  to  agent  expressly  or 
impliedly  authorized  to  receive  goods.     (Platt  v.  Wells,  26  How.  Pr. 
442;  Hotchkiss  v.  Artisans'  Bank,  42  Barb.  517.)     Such  delivery  to 
agent  must  be  regularly  made,  and  in  due  course  of  business.     (Crou- 
kite  v.  Wells,  32  N.Y.' 247.)     But  though  liable  as  insurer  until  actual 
delivery,  he  may  be  discharged  by  neglect  of  owner  of  goods  to  take 
them  in  due  season.     Rath  v.  Buffalo  and  State  Line  R.R.  Co.,  34  N.Y. 
548;  Gilhooly  v.  N.Y.  and  Savannah  Steam  Navigation  Co. ,  i  Daly,  197. 

14.  Live  Stock. — The  defendants  as  carriers,  transporting  live 
stock,  met  with  an  accident  for  which  they  were  not  liable  under  their 
contract,  by  which  the  animals  were  killed.     Held,  that  they  were  not 
liable  for  not  delivering  the  carcasses.     Lee  v.  Marsh,  43  Barb.   102; 
28  How.  Pr.  275. 

15.  Notice  to  Owner. — Notice  to  restrict  the  liability  of  carriers, 
is  not  sufficient  to  bind  the  owner  of  goods  carried,  if  only  given  with- 
out his  knowledge  or  assent,  to  one  who  was  directed  by  him  to  deliver 
the   same  to  the   carrier.     Fillebrown  v.  Grand  Trunk  R.R.  Co.,  55 
Me.   462. 

16.  Obey  Instructions. — As  to  the  absolute  duty  to  obey  the 
instructions  of  the  owner  of  goods  directed  to  be  forwarded  beyond  the 
terminus  of  his  own  route,  and  his  responsibility  in  case  of  a  deviation, 
aee  Johnson  v.  N.Y.  Central  R.R.  Co.,  33  N.Y.  610. 

17.  Perishable  Property. — When  two  kinds  of  property,  one  per- 
ishable and  the  other  not,  are  delivered  to  a  common  carrier  at  the 
same  time,  by  different  owners  for  transportation,  if  the  carrier  cannot 


126  FORMS    OF    COMPLAINTS. 

carry  all  the  property,  he  may  give  preference  to  the  perishable;  and  if 
either  must  wait,  it  should  be  the  latter.  Marshall  v.  N.Y.  etc.  R.R. 
Co.,  45  Barb,  502. 

18.  Presumption. — The  presumption  is  that  responsibility  of  a 
party  as  carriers  continues  until  the  entire  transit  is  completed ;    ( Laduc 
v.  Griffith,  25  N.Y  364;)  and  further  until  actual  delivery  to  the  party 
to  whom  the  goods  are  addressed,'  or  his  agent;  (Fenner  v.  Buffalo  and 
State  Line  R.R.  Co.,  46  Barb.  103;)  or  to  the  carriers  next  in  order  on 
a  connected  route.      (McDonald  v.  Western  Transportation  Co.,   34 
N.Y.  497.)     In  the  absence  of  an  express  contract,  the  obligation  of  a 
carrier  of  goods  is  to  carry  them  according  to  the  usual  route  for  the 
conveyance  of  such  articles  by  him  to  the  public,  and  to  deliver  them 
within  a  reasonable  time.     (Hales  v.  London  etc.  R.R.  Co.,  4  B.  &  S. 
66.)     The  presumption  of  law  is  against  a  common  carrier,  except  it 
be  made  to  appear  that  the   injury  complained   of  could   not  have 
happened  by  the  intervention  of  human  means.     Agnew  v.  Steamer 
"Contra  Costa,"  27  Cal.  425. 

19.  Principal   and    Agent. — A  contractor  for  carrying  the  mail 
is   liable  for  the  negligence   of  the   carrier.      Sawyer  v.   Corse,    17 
Graf.  230. 

20.  Responsibility  of  Railroad  Companies. — For  full  and 
definite  statement  as  to  positions  which  may  be  considered  as  settled 
with   reference   to   responsibility  of  railroad  companies  as   common 
carriers,  see  Bissell  v.  N.Y.  Cent.  R.R.  Co.,  25  N.Y.  442,  455-6. 

21.  Treatment  of  Passengers. — If  a  railroad  holds  itself  out 
as  a  common  carrier  to  a  point  beyond  the  termination  of  its  road,  it  is 
deemed  a  common  carrier  for  the  whole  distance,  and  if  it  professes  to 
contract  and  does  contract  with  and  carries  persons  the  entire  distance,  it 
must  treat  all  alike,  and  contract  with  and  carry  all  who  apply.      This 
principle  applies  to  the  carriage  of  goods  as  well  as  passengers.     Wheeler 
0.  S.F.  and  A.  R.R.  Co.,  31  Cal.  46. 

22.  When    not   Liable. — A  carrier  is  not  liable  for  the  loss  of 
money  of  one  passenger  contained  in  a  valise  which  another  passenger, 
with  the  knowledge  of  the  first,  delivers  as  his  own  baggage,  and  the 
carrier  receives  it  as  such.    (Dunlap  v.  International  Steamboat  Co.,  98 
Mass.  371.)     Carriers  cannot  be  held  liable  for  the  breaking  of  very 
brittle  articles  in  a  package  for  want  of  specially  careful  handling,  if 


AGAINST    COMMON    CARRIERS.  127 

they  are  not  warned  of  the  contents  of  the  package.  American  Express 
Co.  v.  Perkins,  42  777.  458. 

23.  Without  Compensation. — A  common  carrier  is  not  liable 
for  the  loss  of  goods,  where  he  is  to  receive  no  compensation  for  the 
carriage,  and  where  he  has  exercised  ordinary  diligence  in  respect  to 
the  same.  His  liability  in  such  a  case  is  only  that  of  a  bailee  without 
hire.  (Fayz>.  Steamer  "New  World,"  i  Cal.  348.  The  rule  seems  to  be 
different  in  Minnesota.  A  complaint  which  alleges  a  delivery  of  goods 
to  a  common  carrier,  and  acceptance  by  him  to  be  conveyed  by  him 
without  reward,  the  loss  of  the  goods  occasioned  by  the  gross  negli- 
gence of  the  defendants,  together  with  the  value  of  the  goods  and  the 
amount  of  the  loss  of  the  bailor,  states  a  ground  of  action.  (McCauley 
v.  Davidson,  10  Minn.  418.)  All  bailments,  with  or  without  compen- 
sation to  the  bailee,  are  contracts  founded  on  a  sufficient  considera- 
tion. Id. 

• 

JVo.  390. 

ii.    Against  Common  Carrier,  for  Loss  of  Goods. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   at    the  times     hereinafter   mentioned,    the 
defendant  was  a  common  carrier  of  goods,  for   hire, 
between  the  places  hereinafter  mentioned. 

II.  That  on  the  ....  day  of ,  1 8 .  . ,  at , 

in  consideration  of  the  sum  of ,  then  paid  \or 

as  the  case  may  be~\  to  him  by  the  plaintiff,  the  defendant 
agreed  safely  to  carry  to ,  and  there  deliver  to 

,  or  order  [or  otherwise,  according  to  the  facf\, 

certain  goods,  the  property  of  the  plaintiff,  of  the  value 

of   dollars,  consisting  of  \here   describe  the 

goods],  which  the  plaintiff  then  and  there  delivered  to 
the  defendant,  who  received  the  same  upon  the  agree- 
ment and  for  the  purposes  before  mentioned. 


128  FORMS    OF    COMPLAINTS. 

III.  That  the  defendant  did  not  safely  carry  and 
deliver  the  said  goods  pursuant  to  said  agreement,  but 
on  the  contrary,  the  defendant  so  negligently  conducted 
and  so  misbehaved  in  regard  to  the  same,  in  his  calling 
as  carrier,  that  they  were  wholly  lost  to  the  plaintiff. 

[Demand  of  Judgment.] 


24.  Act    of  God. — The  expression,  "act  of  God,"  as  used  in  the 
law  of  carriers,  includes  those  losses  and  injuries  which  are  occasioned 
exclusively  by  natural  causes,  such  as  could  not  be  prevented  by  human 
care,   skill,    and   foresight.     (21    Wend.    190;    31  Barb.  38;    3  Esp. 
127;    I    T.  R.    27;     I   Harp.   468;     4  Harr.   448;    4  Bing.  607;     4 
Zabr.  697;  Edw.  on  Bail.  454;  Ang.  on  Carr.  §  156;  Michaels  v.  N.Y. 
Cent.  R.R.  Co.,  30  N.Y.  564.)    Those  acts  are  to  be  regarded  in  a  legal 
sense  as  the  acts  of  God  which  do  not  happen  through  human  agency, 
such  as  storms,  lightnings  and  tempests.     (Polack  v.  Pioche,  35  Cal. 
416.)      The   elements  are  the  means  through  which  God  acts,  and 
damages  by  the  elements  are  damages  by  the  act  of  God.     See  Note  i. 

25.  Date,  Amount. — A  complaint  which  does  not  state  the  date 
of  the  draft,  which  was  lost  by  a  common  carrier,  the  amount  for  which 
it  was  drawn,  the  time  when  it  was  payable,  or  to  whom  payable,  is 
insufficient.     Zeigler  v.  Wells,  Fargo  &  Co.,  23  Cal.  179. 

26.  Liability. — The  law  adjudges  a  common  carrier  responsible 
for  loss  of  goods,  irrespective  of  any  question  of  negligence  or  fault  on 
his  part,  if  the   loss  does  not  occur  by  the  act  of  God  or  the  public 
enemies.     Merritt  v.  Earle,  29  N.Y.  115. 

27.  Rule  of  Damages. — In  an  action  against  carriers,  the  rule  of 
damages  is  the  value  of  the  goods  at  the  port  of  delivery,  and  not  the 
invoice    price,  or  the  value  at  the   port  of   shipment.     Briggold  v. 
Haven,  i  Cal.  108. 


AGAINST   COMMON    CARRIERS.  129 

No.  391. 

iii.    For  Loss  of  Baggage. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That    on   the  ....    day    of ,  18 .  . ,  the 

defendant  was  a   common   carrier   of  passengers  and 
their  baggage,  by    [stage  coach],    from    to 

,  for  hire. 

II.  That  on  that  day  he  received  into  his  [coach]  the 
plaintiff  with  his  baggage,  to  wit  [designate  baggage] , 

of  the  value  of dollars,  to   be   carried  from 

said    to ,  for   dollars  then 

paid  to  the  defendant  [or  for  him\. 

III.  That  the   defendant  did  not  use  proper    care 
therein,  but,  by  the  negligence  and  improper  conduct  of 
him  and  his  servants,  said  baggage  was  wholly  lost. 

[Demand  of  Judgment '.] 


28.  Acceptance  of  Goods. — To  charge  a  carrier,  there  must  be 
an  acceptance  of  the  goods,  either  in'a  special  manner  as  by  "  check- 
ing," or  according  to  the  usage  of  their  business.     Story  on  Bailm.  §  533 ; 
Ang.  on  Carr.  §  140;  i  Ld.  Raym.  46;  5  Esp.  41 ;  7  Hill,  47;  2  Man.  & 
S.  172;  3  Taunt.    264;  2  Shaw,  128;  Ball  v.  N.J.  Steamboat  Co.,   i 
Daly,  491. 

29.  Baggage. — The  baggage   of  a  passenger  entrusted   to   one 
whose  business  it  is  to  transport  persons  and  their  baggage,  and  with 
whom   the  owner  has   embarked,   is   under   the  same   protection  as 
the  goods  are  which  are  entrusted  to  a  common  carrier  of  goods.    (Mer- 
rill v.  Grinnell,  30  N.F.  594.)     As  to  the  duty  of  carriers  by  water  with 
respect  to  baggage   of  passengers,  Merrill   v.  Grinnell   30   N.Y.  594; 
Chamberlain  v.  West.  Trans.  Co.,  ^.Barber,  218;  Mudgettz>.  Bay  State 

9 


I3O  FORMS    OF     COMPLAINTS. 

Steamboat  Co.,  i  Daly  151;   Glasco  v.  N.Y.  Cent.  R.R.  Co.,  36  Barb, 
557;  Gulhooly  v.  N.Y.  and  Savannah  S.N.  Co.,  i  Daly,  197. 

30.  Baggage,    what   is. — The  jury  are  to  determine  what  con- 
stitutes baggage  under  the  circumstances.   A  sum  of  money  reasonably 
necessary  to  defray  the  expenses  of  the  journey  is  properly  baggage; 
this  depends  upon  the  length  of  the  journey,  and  to  some  extent  the 
wealth  of  the  traveler,  and  it  includes  such  an  allowance  for  accident  or 
sickness,  and  for  sojourning  by  the  way,  as  a  reasonable,  prudent  man 
would  consider  it  necessary  to  make.     It  should  be  limited  to  money 
for   traveling    expenses,    properly   so   called.      (Merrill    v.    Grinnell, 
30  N.Y.  594.)     And  the  carrier  is  responsible  for  the  loss  of  money  in 
a  passenger's  trunk  to  the  extent  of  reasonable  traveling  expenses.    (Mer- 
rill v.  Grinell,  30  N.Y.  394.)     But  not  for  jewelry  belonging  to  a  third 
person.     Richards  v.  Wescott,  4  Bostv.  9. 

31.  Baggage,    Retaining    Custody  of. — The  carrier  of   pas- 
sengers by  steamboat  is  not  exonerated  from  responsibility  for  the  per- 
sonal baggage  of  a  passenger,  by  the  fact  that  the  passenger  deposits  it 
in  the  stateroom  occupied  by  him,  of  which  he  has  the  key,  and  from 
which  it  is  stolen.     (19  Wend.  236;  8  Cow.  33;  4  Man  <5f  S.  310;  7 
Hill,  47;  Mudgett  v.  Bay  State  Steamboat  Co.,  i   Daly,  151.)     So,  a 
mere  supervision  of  one's  baggage,  will  not  relieve  from  responsibility 
2  Bos.  &.  P.  416;  i  Sir.  694. 

32.  Money  Stolen. — The  owners  of  a  steamboat  are  not  liable 
for  money  stolen  from  the  pockets  of  a  passenger,  when  in  bed  and 
asleep,  it  not  being  proved  it  was  stolen  by  persons  employed  on  board. 
Abbott ».  Broadstreet,  55  Me.  530. 

33.  Route. — It  is  not  deemed  necessary  to  state  the  whole  route 
of  the  defendants.     That  they  were   carriers   between and 

,  is  sufficient.     See  Clark  v.  Faxon,  21  Wend.  153. 

34.  Vehicle. — A  common  carrier  is  absolutely  bound,  irrespec- 
tive of  negligence,   to  provide  road  worthy  vehicles.     Alden   v.  N.Y. 
Cent.  R.R.  Co.,  26  N.Y.  102. 


AGAINST    COMMON    CARRIERS. 


No.  392. 

iv.    Against  Carrier  by   Water,  for  Negligence  in  Loading  Cargo. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That    on    the  ....  day    of  ........  ,    1  8  .  .  ,    at 

........  ,  the  plaintiff,  at  the  request  of  the  defendant, 

caused  to  be  delivered  to  him  [designate  the  goods]  of 
the  plaintiff,  of  the  value  of  ........  dollars,  to  be  by 

the  defendant  safely  and  securely  loaded  on  board  a  cer- 
tain vessel,  at  ........  ,  for  the  plaintiff,  for  a  reasona- 

ble compensation  to  be  paid  said  defendant  therefor;  and 
the  defendant  then  received  the  goods  for  that  purpose. 

II.  That  the  defendant  afterwards,  by  himself  and  his 
servants,  conducted  so  carelessly  and  improperly  the 
loading  of  the  said  goods  on  board  the  said  vessel,  that 
by  their  negligence  and  improper   conduct  the  goods 
were  broken  and  injured,  and  a  part  thereof  wholly 
destroyed,    to    the   damage   of    plaintiff    in    ........ 

dollars. 

[Demand  of  Judgment.} 


35.  Steam  Tugs. — The  towing  a  vessel  out  to  sea  by  a  steamer 
is  the  transportation  of  property,  so  as  to  bring  the  case  within  the  law 
of  common  carriers.  (White  v.  Tug  "  Mary  Ann,"  6  Cal.  462.)  And 
the  fact  that  the  owner  of  the  ship  lost  while  being  towed  out  to  sea 
was  the  agent  of  the  owners  of  the  steam  tug,  does  not  relieve  the 
latter  from  the  obligations  under  which  they  contract  with  others.  (Id.) 
Defendant  undertook  to  tow  plaintiff's  schooner  and  a  Spanish  bark 
from  New  Orleans  to  the  Gulf  of  Mexico.  In  consequence  of  the  bad 
steering  of  the  bark  by  its  own  men,  it  broke  loose  from  the  tow  boat 
and  damaged  the  schooner.  Held,  that  defendants  were  liable  as  car- 
riers. Clapp  v .  Stanton,  20  La.  An.  495. 


132  FORMS    OF     COMPLAINTS. 

No.  393. 

v.   Against  Carrier  for  not  Regarding  Notice  to  Keep  Dry. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  ....  day  of ,  1 8 . . ,  at , 

at  the  port  of ,  the  defendant  was  master  and 

commander  of  a  certain  vessel  known  as  the , 

then  lying  at  said  port,  and  the  plaintiff  caused  to  be 
shipped  on  board  said  vessel  certain  [describe  thegoods\, 

the  property  of  the  plainiiff,  of  the  value  of 

dollars,  which  said  goods  were  then  in  good  order  and 
condition;  in  consideration  whereof,  and  of  the  sum  of 

dollars  then  and  there  paid  by  the  plaintiff  to 

the  defendant,  the  defendant  then  and  there  promised 
carefully  and  safely  to  carry  and  transport  said  goods  to 

,  and  there  safely  to  deliver  them  to , 

danger  of  the  seas  only  excepted,  and  then  and  there 
received  said  goods  for  that  purpose. 

II.  That  the  plaintiff  then  and   there  caused   due 
notice  to  be  given  to  the  defendant  that  it  was  neces- 
sary to  the  preservation  of  said  goods  that  they  should 
be  kept  dry. 

III.  That   the    defendant  failed  to    take  care  of  or 
safely  to  carry  said  goods;   but,  on  the  contrary,  not 
regarding  his  said  promise,  so  negligently  and  carelessly 
carried  the  same  that  they  became  wet,  and  thereby 
entirely  destroyed  [or  otherwise  state  injury,  according 
to  thefacts~\\  which  injury  was  not  occasioned  by  reason 
of  any  danger  of  the  seas,  but  wholly  through  the  neg- 


AGAINST    COMMON    CARRIERS.  133 

ligence  of  the  defendant  and   his  servants,  by  reason 

whereof  the  plaintiff  was  injured,  to  his  damage 

dollars. 

[Demand  of  Judgment. \ 

36.  Damage  to  Cargo. — In  a  case  of  damage  to  cargo,  where 
the  libel  alleges  the  fault  of  the  master  to  be :  First,  That  he  falsely 
represented  his  vessel  to  be  tight,  staunch,  and  seaworthy;  and,  Second, 
That  the  danger  resulted  from  the  master's  carelessness,  negligence,  and 
improper  conduct;  the  libelant  cannot  claim  another  specific  ground  of 
complaint  not  set  up  in  the  libel,  e.g.,  that  the  damage  was  caused  by 
the  fault  of  the  master  in  not  putting  into  some  other  port  to  repair  his 
vessel,  and  take  measures  to  preserve  his  cargo.     Soule  v.  Radocanachi, 
i  Newb.  504. 

37.  Notice  in  Writing — If  the  carrier  have  notice,  by  wrfting 
on  the  article  or  package,  of  the  need  of  peculiar  care,  he  is  bound  to 
comply  with  such   directions.     See  Baxter   v.  Leland,   i   Abbott's  R. 
348;  Hastings  v.  Pepper,  n   Pick.  41;  and  Sager  v.  Portsmouth  etc. 
R.R.  Co.,  31  Maine,  228. 

No.  394. 

vi.    For  Loss  in  Unloading. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  [As  in  Form  Noi  393.] 

II.  \_As  in  Form  No.  393.] 

III.  That  said  vessel   afterwards    safely  arrived   at 

.-. ,  and  no  \excepted  perils']  prevented  the  safe 

carriage  or  delivery  of  the  goods. 

IV.  That  the  defendant  did  not  deliver  the  said  goods 
to  the  plaintiff;  and  for  want  of  due  care  in  the  defend- 
ant and  his  servants  in  unloading  and  delivering  said 
goods  from  said  vessel,  they  were  broken  and  injured, 
and  were  wholly  lost  to  the  plaintiff. 

[Demand  of  Judgment^ 


134  FORMS    OF    COMPLAINTS. 

38.  Mixing  Goods. — Where  defendant,  without  notifying  the  con- 
signees, unloaded  coal  upon  the  bare  ground,  and  so  carelessly  that  dif- 
ferent sorts  were  mixed  together  with  the  soil,  the  defendant's  liability 
did  not  cease  until  he  had  unloaded  the  coal  with  due  care,  and  put 
it  in  a  reasonably  safe  place.  Rice  v.  Boston  and  Worcester  R.R.  Co., 
98  Mass.  212;  see  Chicago  and  Alton  R.R.  Co.  v.  Scott,  42  ///.  132. 


No.  395. 

vii.   Against  Common  Carrier,  for  Failure  to  Deliver  at  Time  Agreed. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

\.  That  the  defendant  is  a  corporation  duly  organized 
under  and  pursuant  to  the  laws  of  this  State,  and  at  the 
times  hereinafter  mentioned  was  a  common  carrier  of 
goods,  for  hire,  between and  

II.  That    on  the    ....  day  of ,  18.  .,    at 

,  the  plaintiff  delivered  to  the  defendant  [de- 
scribe goods\,    of  the  value  of dollars,    the 

property  of  the  plaintiff,  which  the  defendant,  in  con- 
sideration of  a  reasonable  compensation  to  be  paid  it  by 

the  plaintiff,  agreed  safely  to  carry  to ,  and 

there  deliver  to  the  plaintiff,   on   or  before   the  .... 
day  of 

III.  That  the  defendant  did  not  fulfill  its  agreement 

safely  to  carry  the  same,  and  to  deliver  them  in 

on  said  day;  but,  on  the  contrary,  although  the  period 
between  the  said  \day  when  received  by  defendant^  and 
said  \_day  when  they  should  have  been  deliver ed~\  was  a 
reasonable  time  for  carrying  the  same  from to 

,  yet  the  defendant  so  negligently  and  care- 
lessly conducted,  and  so  misbehaved  in  regard  to  the 
same,  in  its  calling  as  common  carriers,  that  it  failed  to 


AGAINST    COMMON    CARRIERS. 

deliver   the   same    in    until   the  .  .  . 

,  18... 

IV.    That  the  market  value  of  said  goods  in  \_placc 

of  delivery^  on  the  [day  agreecT\  was  .  . dollars, 

but  on  the  [day  of  actual  delivery^  was  only 

dollars;  and  that  by  reason  of  the  premises  the  plaintiff 
was  damaged  in dollars. 

[Demand  of  Judgment.} 


38.  Breach  of  Contract. — A  common  carrier  becomes  charged 
on  his  contract  immediately  upon  his  failure  to  carry  and  deliver  as 
agreed.     Jones  v.  Wells,  Fargo  &  Co.,  28  Cal.  259. 

39.  Delivery. — The  fact  that  the  consignee's  business  address  was 
stated  in  the  bill  of  lading  does  not  oblige  the  shipper  to  depart  from 
his  known  and  usual  place  of  delivery,  and  deliver  a  cargo  at  a  piec 
more  contiguous  to  the  consignee's  place  of  business.     2  Hilt.  150;  15 
Johns.  39;  ijWend.  305;  Western  Trans.  Co.  v.  Hawley,  i  Daly,  327. 

40.  Delivery  to  Wrong   Person. — Delivery  of  goods  by  a 
carrier  to  a  wrong  person  by  mistake,  or  by  gross  imposition,  will  not 
discharge  his  responsibility  to  the  owner  for  the  value  of  the  goods. 
Adams  v.  Blackenstein,  2  Cal.  413. 

41.  Demand. — Where  a  demand  is  necessary  to  perfect  plaintiffs 
title,  it  must  be  averred.     Bristol  v.  Renssalaer  and  Saratoga  R.R.  Co., 
9  Barb.  158. 


No.  396. 

viii.    Against  Carrier  on  Special  Contract  for  Loss  of  Goods. 

[TITLE.] 
The  plaintiff  complains,  and  alleges: 

I.    That  the  defendant  is  a  corporation  created  by  and 
under  the  laws  of  this  State,  and  at  the  times  herein- 


136  FORMS    OF     COMPLAINTS. 

after  mentioned,  being  such  corporation,  was  a  common 
carrier  of  goods  for  hire  between and 

II.  That  on  the day  of .  . . ,   1 8 .   ,  at 

,  the  plaintiff  delivered  to  the  defendant,  being 

such  corporation,  certain  goods,  the  property  of  the 
plaintiff,  to  wit  [describe  the  goods~\,  of  the  value  of 

dollars,  and  in  consideration  of  the  sum  of 

dollars  paid  defendant  by  the  plaintiff,  the 

defendant  then  and  there  entered  into  an  agreement 
with  the  plaintiff,  in  writing,  subscribed  by  the  defend- 
ant thereunto  lawfully  authorized  by  its  agent,  of  which 
agreement  the  following  is  a  copy:  \Copy  agreement.] 

III.  That  the  defendant  did  not  safely  carry  and  de- 
liver said  goods  pursuant  to  its  said  agreement;  but  so 
negligently  and  carelessly  conducted  and  misbehaved  in 
regard  to  the  same,  that  the  said  goods  were  wholly 
jost  to  the  plaintiff. 

[Demand  of  Judgment J] 


42.  Beyond    the    Limits. — Railroad  companies,   as  common 
carriers,  may  make  valid  contracts  to  carry  passengers  or  freight  beyond 
the  limit  of  their  own  road,  either  by  land  or  water,  and  in  this  way  be- 
come liable  for  the  acts  and  neglects  of  other  carriers  which  are  in  no 
sense  under  their  control.    Wheeler  v.  S.  F.  and  A.  R.R.  Co.,  31  CaL  46. 

43.  Common  Carriers  and  Forwarders. — The  liabilities  of 
common  carriers  and  forwarders,  independent  of  any  express  stipulations 
in  the  contract,  are  entirely  different.     (Hooper  v.  Wells,  27  Cal.  u.) 
Where  the  defendants,  being  both  carriers  and  forwarders,  took  goods 
in  pursuance  of  a  previous  oral  agreement  to  carry,  and  gave  a  receipt 
for  the  goods,  expressing  that  they  were  received  "to  be  forwarded.-" 
Held,  that  they  were  liable  as  carriers.     Blossom  v.  Griffin,  13  N.Y. 
569;  and  see  McCotter  v.  Hooker,  8  N.Y.  497. 

44.  Contract  Special. — A  carrier  may  contract  against  loss  from 


AGAINST    COMMON    CARRIERS.  137 

fire  not  caused  by  his  own  negligence.  (N.  O.  Mut.  Ins.  Co.  v.  N.  O. 
J.  and  G.  R.R.  Co.,  20  La.  An.  302.)  By  a  contract  for  carriage  of 
live  stock,  the  owner  took  the  risks  of  a  damage  ' '  in  unloading,  con- 
veyance, and  otherwise,  whether  arising  from  negligence,  or  otherwise." 
The  bottom  of  the  car  dropped  out.  Held,  that  if  the  car  was  unfit  the 
carrier  was  liable.  Hawkins  v.  Great  West.  R.R.  Co.,  17  Mich.  57. 

45.  Contract  Construction. — Restrictions  on  the  common  law 
liability  of  a   common    carrier,  inserted  for   his  benefit  in   a  receipt 
drawn  by  himself,  and  signed  by  him  alone,  for  goods  intrusted  to  him 
in  such   capacity,  are  construed   most   strongly  against  the  common 
carrier.     (Hooper  v.  Wells,  Fargo  &  Co.,  27  Cal.    n.)     The  words, 
",not  to  be  responsible  except  as  forwarder,"  in  a  common  carrier's 
receipt,  do  not  exempt  him  from  liability  for  loss  of  goods  occasioned 
by   the  carelessness  or  negligence  of  the  employees  of  a  steamboat, 
owned  and  controlled  by  other  parties  than  the  carrier,  but  ordinarily 
used  by  him  in  his  business  of  carrier  as  a  means  of  conveyance.     Id. 

46.  Contract,    Effect   of. — When  a  special  contract    is  made 
with  a  carrier,  he  becomes  as  to  that  transacton  an  ordinary  bailee  and 
a  private  carrier  for  hire,    i  ifN.Y.  490;  Moriarty  v.  Harnden's  Express, 
i  Daly,  227. 

47.  Intention  must  be  Unequivocal. — The  common  carrier's 
liability  for  loss  occasioned  by  negligence  in  the   agents  he   employs 
will  not  be  restricted,  unless  the  intention  to  thus  exonerate  him  is 
expressed  in  the  instrument  in  plain  and  unequivocal  terms.     Hooper 
v.  Wells,  Fargo  &  Co.,  27  Cal.  n. 

48.  Joint  Contract. — If  the  action  is  upon  the  contract,  a  joint 
contract  by  all  the  defendants  must   be  proved.     As   to   when   one 
carrier  may  be  held  for  a   loss  occurring  on   the  route  of  another  with 
whose  business  he  was  connected,  see  2  Green!,  on  Ev.  208,  and  cases 
cited;  Hart  v.  Rensselaer  and  Saratoga  R.R.  Co.,  8  N.Y.  37;  Campbell 
v.  Perkins,  Id.  430;  Wright  v.  Boughton,  22  Barb.  561. 

49.  Power  of  Common  Carrier  to  Qualify  his  Respons- 
ibility.— As  to  power  of  common  carrier  of  goods  to  limit  his  respons- 
ibility by    special  contract,  see  Price  v.  Hartshorn,  44  Barb.    655; 
Lee  v.  Marsh,  43  Barb.  102;  28  How.  Pr.  275;  Meyer   v.  Harnden's 
Express  Co.,  24  How.Pr.  290;  Heinmen  v.  Grand  Trunk  R.R.  Co.,  31 
How.  Pr.  430;  Moriarty  v.  Harden's  Express  Co.,  i  Daly,  327. 


138  FORMS    OF    COMPLAINTS. 

50.  Sunday  Contract. — In  Massachusetts,  a  contract  made 
in  violation  of  the  Lord's  day  is  void,  and  no  subsequent  rati- 
fication will  sustain  an  action  upon  it.  (Day  v.  McAllister,  1 5  Gray 
(Mass.)  433.)  But  the  rule  as  laid  down  in  New  York  does  not  exempt  the 
carrier  from  his  liability  for  the  loss  upon  a  contract  under  the  Sunday 
laws  of  New  York,  because  it  is  made  on  Sunday.  To  render  it  invalid) 
it  is  necessary  that  the  contract  should  require  the  work  or  labor  agreed 
for,  to  be  performed  on  Sunday.  To  entitle  the  plaintiff  to  recover 
against  the  carrier,  it  is  immaterial  whether  the  contract  is  good  or  bad. 
The  liability  of  the  carrier  is  imposed  by  law,  and  does  not  rest  on 
his  contract.  Edw.  on  Bailm.  466;  2  Wend.  338;  19  Id.  239;  i  Chitt. 
R.  i;  Merritt  v.  Earle,  29  N.Y.  115. 


CHAPTER    III. 

AGAINST    AGENTS,     EMPLOYEES,     AND    OTHERS,     FOR 
NEGLIGENCE. 

No.  397. 

i.    Against  Agent,  for  not  Using  Diligence  to  Sell  Goods. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,   18 .  . ,  at 

,  the  defendant  agreed   with  the  plaintiff,  as 

his  agent,  and  for  compensation  to  be  paid  by  plaintiff, 
to  sell  for  him  certain  goods,  to  wit   \_describe  tkem~\,  of 

the  value  of dollars;  and  thereupon  received 

the  same  from  him  for  that  purpose. 

II.  That  the  defendant  did  not  use  due  diligence  to 
sell  the  same,  but  unreasonably  delayed  so  to  do;  and 


FOR    NEGLIGENCE.  139 

by  reason  thereof  the  same  were  afterwards  sold  by  the 
defendant  for  the  plaintiff,  and  produced dol- 
lars less  than  the  same  would  have  produced  had  the 
defendant  used  due  diligence  in  selling  the  same;  and 

whereby  plaintiff  incurred    dollars  expenses 

in  warehousing  the  same,  to  his  damage  in 

dollars. 

[Demand  of  Judgment.] 


1.  Ferryman. — It  is  the  duty  of  the  ferryman  to  see  that  the  teams 
are  safely  driven  on  board  the  boat,  and  if  he  thinks  proper  he  may 
drive  himself,  or  unharness  the  team,  or  unload  the  wagon,  to  get  them 
safely  on  board.     (May  v.  Hanson,  5  Cal.  360.)     But  if  the  ferryman 
permits   the  party  to  drive  himself  he  constitutes  him  quoad  hoc  his 
agent.     Id. 

2.  Negligence  of  Sheriff! — The  mere  omission  of  a  deputy  to 
inform  the  sheriff  of  having  process  in  hand  is  not  such  negligence  as 
to  charge  the  sheriff  in  case  a  writ  last  in  hands  was  executed  first. 
Whitney  v.  Butterfield,  13  Cal.  335. 

3.  Pledgee  as  Agent. — A  party  by  pledging  negotiable  securities 
transferable  by  delivery,  loses  all  right  to  the  securities  when  transferred 
by  the  pledgee  in  good  faith  to  a  third  party.     The  pledgee  in  such  a 
case  should  be  treated  in  the  transaction  as  the  agent  of  the  owner,  and 
the  owner  should  be  bound  by  his  acts  in  the  premises.     Coit  v.  Hum- 
bert, 5  Cal.  260. 

4.  Powers  of  Agent. — In  an  action  by  a  principal  against  his 
agent,  charging  him  with  an  abuse  of  his  powers,  it  is  necessary  to  allege 
that  the  defendant  acted  as  agent.     ^Etna  Ins.  Co.  v .  Sabine,  6  McLean, 
393- 

5.  Unauthorized  Act  of  Agent. — The  ratification  by  a  princi- 
pal of  an  unauthorized  act  of  an  agent  has  a  retroactive  efficacy,  and, 
being  equivalent  to  an  original  authority,  an  allegation  of  due  authority 
is  sustained  by  proof  of  such  ratification.     Hoyt  v.  Thompson, .19  N.Y. 
218. 


I4O  FORMS    OF     COMPLAINTS. 

No.  398. 

ii.    Against  Agent,  for  Carelessly  Selling  to  an  Insolvent. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on  the day  of ,   1 8 . . ,  at 

,  the  defendant  undertook  with  the  plaintiff,  as 

his  agent,  and  for  compensation  to  be  paid  by  him,  to 
sell  for  him  goods  of   the  plaintiff,  to  wit   [designate 

goods],  of  the  value  of dollars,  and  thereupon 

received  the  same  from  him  for  that  purpose. 

II.  That  the  defendant  did  not  use  due  diligence  to 
sell  or  in  selling  the  same,  but  negligently  sold  the  said 

for  the  plaintiff  to  a  person  in  embarrassed 

circumstances,  then  well  knowing  said  person's  financial 
embarrassments,  without  receiving  the  price  therefor, 
or  taking  security  for  the  payment  thereof;  whereby  the 
plaintiff  has  hitherto  lost  and  is  likely  wholly  to  lose  the 

price. 

[Demand  of  Judgment, ,] 

JVo.  399. 

iii.    Against  Agent,  for  Selling  for  a    Worthless  'Bill. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the ....  day  of ,  1 8 .  . ,  at . , 

the  defendant  undertook  with  the  plaintiff,  as  his  agent, 
and  for  a  compensation  to  be  paid  by  him,  to  sell  for 
him  [state  whaf\,  for  cash  or  an  approved  bill  or  note,  at 
thirty  days  or  less,  and  not  otherwise  [or  state  the  fact]. 


FOR    NEGLIGENCE. 

II.  That  the  defendant  did  not  use  due  diligence  in 
selling  the  same,  but  negligently  and  without  exercising 
ordinary  business  care,  sold  the  same  for  a  bad  and 

insufficient  bill  of  exchange,  for dollars,  having 

months  to  run,  and  which  is  worthless  and  of  no 

value  to  the  plaintiff;  and  although  the  same  became 
payable  before  this  action,  it  is  still  unpaid,  to  the  dam- 
age of  the  plaintiff dollars. 

[Demand  of Judgment. ,] 

l 

No.  400. 

iv.    Against  an  Auctioneer,  for  Selling  below  the  Owner's  Limit. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  . .  . . ,  1 8 .  . ,  at , 

the  defendant  was  engaged  in  the  business  of  an  auc- 
tioneer, and  in  consideration  that  the  plaintiff  would 
deliver  to  him  [describe  the  goods~\,  to  be  sold  by  him 
for  the  plaintiff  for  a  compensation,  undertook,  as  such 
auctioneer,  at  the  time  and  place  aforesaid,  to  sell  the 

same,  at  and  for  no  less  money  than  the  sum  of 

dollars,  and  not  to  sell  them  otherwise. 

II.  That  the  plaintiff  delivered  said  goods  to  the 
defendant  for  that  purpose. 

III.  That  the  defendant,  without  the  knowledge  or 
consent  of  the  plaintiff,  sold  said  goods  for  less  than  the 
sum  to  which  he  was  so  limited  as  aforesaid,  to  wit,  for 
dollars. 

{Demand  of  Judgment. \ 


142  FORMS    OF    COMPLAINTS: 

JVo.  401. 

v.   Against  an  Auctioneer,  for  Selling  on  Credit  against  Orders. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on   the day  of ,   1 8 .  . ,  at 

,  the  defendant  was  engaged  in  the  business 

of  an  auctioneer,  and  in  consideration  that  the  plaintiff 
would  deliver  to  him  \_describe  goods\,  to  be  sold  by  him 
for  the  plaintiff  for  a  compensation,  undertook  as  such,  at 
the  time  and  place  aforesaid,  to  sell  the  same  for  cash, 
and  not  otherwise. 

II.  That  the  plaintiff  delivered  said  goods  to  the  de- 
fendant for  that  purpose. 

III.  That  the  defendant  afterwards  sold  said  goods 
on  credit  without  the  plaintiff's  consent,  and  that  the 
parties  to  whom  such  sale  was  made  are  and  then  were 
wholly  insolvent,  and  the  debt  is  of  no  value. 

[Demand  of  Judgment. \ 

No.  402. 

vi.    Against  Auctioneer  or  Agent,  for  not  Accounting. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.    That  on  or  about  the  ....  day  of ,  1 8 .  . , 

at   ,   the   plaintiff  shipped   from   the   port  of 

,  consigned  to  the  defendant,  then  his  agent, 

kt ,  to  sell  for  cash  [describe  the  goods~\,  of  the 

value  of dollars,  and  gave  notice  of  said  con- 


FOR    NEGLIGENCE.  143 

signment  to  the  defendant,  which  agency,  f(fr  a  valuable 
t  consideration,  he  undertook  and  entered  upon. 

II.  That  he  received  said  goods,  and  thereafter  sold 
the  same,  or  some  part  thereof,  on  account  of  the  plaintiff, 
for dollars. 

III.  That  a   sufficient  and   a  reasonable  time   has 
elapsed  since  said  goods  were  received  and  sold  by  de- 
fendant,  yet  he   has   neglected  and  refused,   and   still 
neglects  and  refuses  to  render  to  the  plaintiff  a  just  and 
true  account  of  such  sale,  and  of  the  proceeds  thereof, 
and  has  also  neglected  and  refused  to  pay  over  the 
proceeds  to  the  plaintiff. 

[Demand  of  Judgment^ 


6.  Agent. — In  an  action  against  an  agent  for  not  accounting,  a 
request  to  account  and  pay  over  must  be  alleged  in  the  complaint  and 
proved  at  the  trial.  Bushnell  v .  McCauley,  7  Cal.  421. 


No.  403. 

vii.    Against  Forwarding  Agent,  for  not  Forwarding  Goods  as  Agreed. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  defend- 
ant was  a  forwarding  agent,  and  keeper  of  a  warehouse, 

at ,  for  the  reception  of  goods  intended  to  be 

forwarded  by  him,  for  hire,  from to 

II.  That  on  the  ....  day  of ,  the  plaintiff 

delivered  to  the  defendant  certain  merchandise,  to  wit 
[designate  the  same],  the  property  of  the  plaintiff,  of 
the  value  of dollars,  which  the  defendant  re- 


144  FORMS    OF    COMPLAINTS. 

ceived  and  undertook,  for  hire,  to  forward  in  a  reasonable- 
time  from to ,  by  a  vessel,  and  mean- 
while to  store  and  safely  keep  the  same. 

III.  That  after  the  defendant  received  said  goods, 
such  a  vessel  did,  within  a  reasonable  time  then  follow- 
ing, to  wit,  on  or  about  the  ....  day  of ,  1 8 .   , 

sail  from  said to ,  and  the  defendant 

might  and  ought  to  have  delivered  the  said  goods  to  the 
master  of  such  vessel  for  the  purpose  aforesaid. 

IV.  That  the  defendant,  not  regarding  his  duty  in 
that  respect,  did  not  do  so,  or  otherwise  forward  said 
goods  within  a  reasonable  time,  but  kept  and  detained 
the  same  in  his  said  warehouse,  for  a  long  and  unreason- 
able time,  to  wit,  four  months,  whereby  the  said  goods 

perished. 

[Demand  of  Judgment.] 


1.  Forwarders  are  not  Insurers. — Forwarders  are  not  in- 
surers, but  they  are  responsible  for  all  injuries  to  property  while  in  their 
charge,  resulting  from  negligence  or  misfeasance  of  themselves,  their 
agents,  or  employees.  Hooper  v.  Wells,  Fargo  &  Co.,  27  Cal.  u. 


No.  404. 

viii.   Against  an  Attorney,  for  Negligence  in  the  Prosecution  of  a  Suit. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is,  and  at  the  times  hereinafter 
mentioned  was  an  attorney  of  the  Supreme  Court  of 
this  State;  that  the  plaintiff  on  or  about  the  month  of 

,  1 8 . . ,  retained  and  employed  him,  as  such 

attorney,  to  prosecute  and   conduct  an'  action  in  the 


FOR    NEGLIGENCE.  145 

District  Court  of  the Judicial  District,  State 

aforesaid,  on  behalf  of  this  plaintiff,  against  one  A.  B., 

for  the  recovery  of dollars,  due  from  him  to 

this  plaintiff,  and  the  defendant  undertook  to  prosecute 
said  action  in  a  proper,  skillful,  and  diligent  manner,  as 
the  attorney  of  the  plaintiff. 

II.  That  the  defendant  might,  in  case  he  had  prose- 
cuted said  action  with  due  diligence  and  skill,  have  ob- 
tained final  judgment  therein  for  this  plaintiff  before  the 

....  day  of ,  1 8 .  . ,  but  he  so  negligently  and 

unskillfully  conducted  said  action,  that  by  his  negligence, 
delay,  and  want  of  skill,  he  did  not  obtain  judgment  until 

the  ....  day  of ,   1 8 .  . ,  and  that  meanwhile 

said  A.  B.  had  become  insolvent;  whereby  the  plaintiff 
was  hindered  and  deprived  of  the  means  of  recovering 
said  sum  "of  money,  and  that  the  same  nor  any  part 
thereof  has  not  been  recovered  or  made  by  plaintiff. 

[Demand  of  Judgment '.] 


8.  Attorneys,  Liabilities  of. — An  attorney  is  liable  to  his  client 
only  for  want  of  care,  skill  and  integrity.     As  to  the  law  of  Illinois  regu- 
lating the  liabilities  of  attorneys,  see  (Peterborough's  PL  and  Pr.  517.) 
A  declaration  against  an  attorney  for  negligence  must  aver  the  payment 
of  fees.     Covilland  v.  Yale,  3  Cal.  108. 

9.  Aver  Generally  that  he  -was  Retained... — In  declaring 
against  an  attorney  for  negligence,  it  is  only  necssary  to  aver  generally 
that  he  was  retained.     But  if  it  be  alleged  that  he  was  retained  in  con- 
sideration of  certain  reasonable  fees  and  rewards  to  be  paid  him,  and 
no  future  time  is  agreed  upon  for  the  payment  of  such  fee,  the  declara- 
tion must  aver  payment,  and  the  omission  of  this  is  error.     Covilland  v. 
Yale,  3  Cal.  108. 

10.  Case  pecided. — Where  in  a  suit  a  question  has  been  made 
and  decided  by  the  Supreme  Court,  counsel  carlnot  be  charged  with 

IO 


146  FORMS    OF     COMPLAINTS. 

negligence  in  acting  upon  that  decision  as  the  law  of  the  case.     Has- 
tings v.  Halleck,  13  Cal.  203. 


Wo.  405. 

ix   For  Negligent  Defense. 


[TITLE.] 


The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is,  and  at  the  times  hereinafter 
stated  was  an  attorney  at  law,  and  that  the  plaintiff,  in 

the  month   of ,    1 8 .  . ,  at ,   retained 

him  as  such  to  defend  on  behalf  of  this  plaintiff  an  action 
brought  against    him    by  A.  B.,  then    pending    in  the 

Court   of  said   State,    for   the    recovery    of 

dollars,  and  the  defendant  undertook  to  defend 

said  action  in  a  proper,  skillful,  and  diligent  manner, 
as  the  attorney  of  the  plaintiff. 

II.  That  such  proceedings  were  had  in  such  action 

that  on   or  about  the  ....  day  of ,  1 8 .  . ,  it 

became  the  duty  of  the  defendant  as  the  attorney  of 
this  plaintiff  to  interpose  an  answer  on  his  behalf  to  the 
complaint  therein,  but  he   wholly  neglected  so  to  do, 
and  by  reason  thereof,  and  through  his  neglect,  judg- 
ment by  default  was  obtained  against  the  plaintiff  in 
said  action,  and  by  reason  thereof  this  plaintiff  was  com- 
pelled to  pay  to  the  said  A.  B dollars,  the 

sum  so  recovered  by  him,  and  was   put  to  costs  and 
charges  in  his  endeavor  to  defend  such  action,  amount- 
ing to  the  sum  of dollars,  and  lost  the  means 

of  recovering  the  same  back  from  said  A.  B. 

[Demand  of  Judgment '.]  • 


FOR    NEGLIGENCE.  147 

11.  Existence  of  Facts. — To  charge  an  attorney  with  negli- 
gence, in  failing  to  set  up  a  defense  based  upon  certain  facts  commu- 
nicated to  him  by  his  client,  he  must  show  by  evidence  the  existence 
of  such  facts,  and  that  they  were  susceptible  of  proof  at  the  trial,  by  the 
exercise  of  proper  diligence  on  the  part  of  his  attorney.  Hastings  v. 
Halleck  13  Cal.  203. 


JVo.  406. 

x.    For  Negligence  in  Examining  Title. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  a  time  hereinafter  mentioned,  the  plaintiff 
made  a  contract  with  one  A.  B.  for  the  purchase  from  him 
of  certain  real  property  \_describe  the  premises^  for  the 

sum  of dollars,    which    property   said    A.  B. 

assumed  to  have  power  to  convey  in  fee,  and  clear  of  all 
incumbrances. 

II.  That  the  defendant  was   an  attorney,   and  the 

plaintiff  at ,  in  the  month  of ,  1 8 .  . , 

employed  him  as  such  to  examine  the  title  of  A.  B.  to 
said  property,  and  to  ascertain  if  the  title  was  good, 
and  if  any  incumbrances  existed  thereon,  and  to  cause 
and  procure  an  estate  therein,  in  fee  simple,  and  clear  of 
all  incumbrances,  to  be  conveyed  to  the  plaintiff,  which 
the  defendant,  for  compensation, -agreed  to  do. 

III.  That  the  defendant  negligently  and  unskillfully 
conducted  such  examination,  and  did  not  use  endeavors 
to  cause  or  procure  a  good  and  sufficient  title,  in  fee 
clear  of  incumbrances,  to  be  conveyed  to  the  plaintiff; 
but  wrongfully  advised  and  induced  the  plaintiff  to  pay 
said  A.  B.  the  sum  of  .........  dollars,  being  said  pur- 
chase money  of  the  premises,  when  in  fact  said  A.  B. 


148  FORMS  OF   COMPLAINT'S. 

had  no  title  thereto  [or  when  said  property  was  subject 
to  incumbrances,  specifying  them  and  amount,  and  the 
plaintiff,  in  order  to  release  the  premises  from  said 
incumbrances,  was  obliged  to  pay  the  holders  thereof 
the  sum  of dollars]. 

[Demand  of  Judgment!} 


12.  Examining  Title. — In  an  action  against  an  attorney  for 
negligence  in  examining  title,  it  is  not  sufficient  to  allege  that  the 
property  was  encumbered.  The  declaration  must  show  how  the  prop- 
erty was  incumbered.  Elder  v.  Bogardus,  Hill  &  D.  Supp.  116. 


No.  407. 

Against  a  Contractor,  for  Leaving  the  Street   in   an   Insecure    State, 
Whereby  Plaintiff's  Horse  was  Injured. 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   at    the   times    hereinafter   mentioned,  the 

defendant  had  contracted  with ,  to  lay  down 

pipes  in  and  under  the  highway  known  as 

Street,  in ,  for  the  purpose  of  supplying  the 

said    with   gas,   and    to    make   the   proper 

trenches  for  the  purpose;  and  when  such  pipes  were 
laid  down,  to  fill  up  properly  the  said  trenches,  and  to 
put  and  leave  the  said  highway  clear  and  in  a  reasona- 
bly secure  condition. 

II.  That   the    defendant   and    his  servants,   on  the 
...  day  of ,  1 8 .  . ,  took  up  part  of  the  said 

highway,  and  made  trenches  and  holes  therein,  and 
laid  down  said  pipes,  and  displaced  the  earth  and 
materials  of  the  said  highway,  and  carelessly  and  negli- 


FOR    NEGLIGENCE.  149 

gently  left  the  said  highway  in  a  dangerous  and  improper 
state,  in  consequence  whereof  a  horse  of  the  plaintiff, 

of  the  value  of dollars,  which   he  was  then 

and  there  lawfully  driving  along  the  said  highway,  fell 
into  and  sunk  therein,  and  was  wounded  and  lamed, 
and  rendered  of  no  value. 

[Demand  of  Judgment^ 


13.  Acceptance  of  Work. — After  acceptance  of  the  work  or 
construction  by  the  person  for  whom  it  was  built,  the  owner  becomes 
liable  for  subsequent  injuries,  and  the  liability  of  the  contractor  ceases. 
Boswell  v.  Laird,  8  Cal.  469. 


No.  408. 

Against  Municipal  Corporation,  for  Damage  done  by  Mob  or  Riot. 

[TlTLE.J        , 

The  plaintiff  complains,  and  alleges: 

I.  That  at  and  before  the  times  hereinafter  mentioned 
the  plaintiff  was  the  occupant  of  [state  the  building\, 
and  therein  he  conducted  a  business  as  [state  business]. 

II.  That  on  the  ....  day  of ,  1 8 .  . ,  a  mob 

of  disorderly  and  riotous  persons  collected  together  in 
said  city  and  created  a  riot. 

III.  That  on  said   day  the  rioters   broke  into  the 
plaintiff's  said  premises,  and  carried  away  therefrom  and 
destroyed  his  goods  and  merchandise. 

IV.  That  the  said  defendants,  though  having  due 
notice  of  the  said  riot  immediately  upon  its  breaking 
out,  did  not  themselves  protect  the  plaintiff's  property, 
but  neglected  so  to  do. 


150  FORMS    OF     COMPLAINTS. 

V.    That  the  value  of  his  said  goods  and  chattels  so 

destroyed  or  injured  by  the  said  rioters  was 

dollars,   and   he  also  sustained  great  damage  by  the 
breaking  into  his  premises,  and  injury  to  the  building, 

and  the  breaking  up  of  his  business  for weeks 

thereafter,  by  reason  of  the  destruction  of  his  stock  of 
goods. 

[Demand  of  Judgment.] 


14.  Action  Against  City  and  County. — In  an  action  against 
a  city  or  county  for  damage  to  property  caused  by  a  mob  or  riot,  an 
averment  of  the  facts  and  the  damage  sustained  by  the  plaintiff  will  be 
sufficient  to  sustain  the  action,  and  it  is  unnecessary  for  the  plaintiff  to 
negative  negligence  or  carelessness  on  his  own  part.     Wolfe  v.  The 
Supervisors  of  Richmond  Co.,   19   How.  Pr.  370;  u   Abb.  Pr.   270. 
As  to  liability  of  city  and  county,  see  Darlington  v.  Mayor  of  N.Y.,  28 
How.  Pr.  352;  Moody  v.  Supervisors  of  Niagara  Co.,  46  Barb.  659; 
Sceiellein  v.  Supervisors  of  Kings  Co.  43  Barb.  490;  Blodgett  v.  City 
of  Syracuse,  36  Barb.  526.  , 

15.  Conflagration. — The  constitutional   provision  that   requires 
payment  for  private  property  taken  for  public  use  does  not  apply  in  the 
case  of  destroying  a  house  to  stop  a  conflagration.     This  right  belongs 
to  the  State  in  virtue  of  her  right  of  eminent  domain.     (Surocco  v. 
Geary,  3  Cal.  69.)     A  city  is  not  liable  for  the  destruction  of  a  building 
to  prevent  the  spread  of  a  fire,  whether  by  private  individuals,  or  by 
order  of  the  city  authorities  assuming  to  act  officially.     McDonald  v. 
City  of  Redwing,  13  Minn.  38. 

16.  Damages,  Rule  of. — For  damages  in  actions  for  injury  to 
property,  created  by  riots  or  motis,,  the  Statute  of  1868,  p  418,  merely 
gives  a  right  of  action,  without  prescribing  any  rules  by  which  the 
amount  of  damages  are  to  be  assessed.     For  the  measure  of  damages 
therefor  in  such  actions  we  must  look  to  the  common  law.     (Cal.  Sup. 
C/.,  Jul.  T.,  1869.)    The  statute  provides  for  damages  for  the  destruction 
or  injury  of  corporeal  property  only,  not  for  injury  to  the  "good  will," 
i.e.,  of  a  newspaper. 

17.  Public  Duty. — An  action  will  not  lie  in  behalf  of  an  individ- 


FOR    NEGLIGENCE.  151 

t 

ual  who  has  sustained  special  damage  from  the  neglect  of  a  public  cor- 
poration to  perform  a  public  duty.  Pray  v.  Mayor  of  Jersey  City,  3 
Vroom,  394. 


No.  409. 

Against  a  Railroad,  for  Killing  Cattle. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  de- 
fendant was  a  corporation    duly  organized    under  the 
laws  of  this  State,  and  was  owner  of  a  certain  railroad, 

known   as  the    Railroad,  together  with   the 

track,  cars,  locomotives,  and  other  appurtenances  thereto 
belonging. 

II.  That  on  the day  of ,  1 8  . . ,  the 

plaintiff  was  the  owner  and  possessed  of  certain  cattle, 
to  wit,  five  cows  and  two  oxen  \pr  any  other  stock,  as 

the  case  may  be],  of  the  value  of dollars,  and 

which  cows  and  oxen  casually,  and  without  the  fault  of 
said  plaintiff,  strayed  in  and  upon  the  track  and  ground 
occupied  by  the  railroad  of  the  said  defendant  at 

III.  That  the  said  defendants,  by  their  agents  and 
servants,  not  regarding  their  duty  in  that  respect,  so , 
carelessly  and  negligently  ran  and  managed  said  loco- 
motives and  cars,  that  the  same  ran  against  and  over 
the  said  cows  and  oxen  of  the  said  plaintiff,  and  killed 
and  destroyed  the  same. 

[Demand  of  Judgment.} 


18.     Allegation  of  Place. — A  complaint  in  an  action  against  a 
railroad  company,  to  recover  the  value  of  animate  killed  on  its  track, 


152  FORMS    OF     COMPLAINTS. 

which  alleges  that  at  the  place  and  time  when  said  animals  were  killed 
by  the  defendant's  locomotive  and  cars  the  same  was  not  securely  fenced 
as  required  by  law,  sufficiently  alleges  that  the  railroad  was  not  securely 
fenced  at  the  place  the  cattle  entered  upon  the  track.  (Indianapolis 
etc.  R.R.  Co.  v.  Adkins,  23  Ind.  340.)  A  complaint  against  a  railroad 
company,  for  stock  killed  by  the  machinery  of  the  company,  is  bad, 
even  after  verdict,  if  it  fail  to  aver  negligence,  or  that  the  road  was 
not  fenced.  Indianapolis  etc.  R.R.  Co.  v.  Brucey,  21  Ind.  215. 

19.  Co-Operating  Negligence. — It  has  been  held  in  New  York 
that  a  railroad  company  is  not  liable  for  negligently  running  its  engine 
upon  and  killing  domestic  animals  found  upon  its  road,  unless  its  acts 
were  heedless  and  wanton.     (See  Tonawanda  R.R.  Co.  v.  Munger,  5 
Den.  255.)     The  reason  of  this  rule  is  co-operating  negligence  of  the 
owner  of  the  animals;  and  the  fact  of  the  trespass  of  the  animals  on  the 
property  of  the  defendant  constitutes  a  decisive  obstacle  to  any  recovery 
of  damages  for  injury  to  them.     It  is  strictly  speaking  damnum  absque 
injuria.  (Id.;  see,  also,  Wilds  v.  Hudson  Riv.  R.R.,  24  N.  Y.  430.)  The 
general  rule  upon  which  the  above  decisions  are  founded,  that  a  plaintiff 
cannot  recover  for  the  negligence  of  a  defendant,  if  his  own  want  of 
care  or  negligence  has  in  any  degree  contributed  to  the  result  com- 
plained of,  was  approved  in  (Gay  v.  Winter,  34  Cal.  153),  for  the  reason 
that  both  parties  being  at  fault,  there  can  be  no  apportionment  of  the 
damages  (24  Vt.  494),  and  not  that  the  negligence  of  the  plaintiff  justi- 
fies or  excuses  the  negligence  of  the  defendant,  which  would  seem  to  be 
the  true  reason  in  the  estimation  of  the  New  York  courts.     Needham 
v.  S.F.  and  S.J.  R.R.  Co.,  Cal.  Sup.  67..  Apl.  T.,  1869. 

20.  Fence    on    Line    of   Road. — The   provision   of  the   law 
requiring  railroad  companies  to  fence  along  the  line  of  their  road  may 
be  waived  by  adjoining  owners.     (Enwright  v.  S.  F.  and  S.  J.  R.R.  Co., 
33  Cal.  230.)     A  railroad  is  not  bound  to  maintain  a  fence  on  the  line 
of  its  road  against  cattle  unlawfully  in  a  pasture  adjoining.     (Mayberry 
v.  Concord  Railway,  47  JV.//.  391.)     A  railroad  company  was  required 
by  statute  to  maintain  "  fences  suitable  for  the  security  of  the  landowner  " 
on  both  sides  of  its  road.     Plaintiffs  sheep  having  been  suffered  to  go 
unlawfully  on  land  adjoining  said  road,  got  through  a  defective  part  of 
the  fence  upon  the  road,  and  were  killed  by  the  train.     It  did  not 
appear  that  the  train  was  negligently  managed.    Held,  that  the  company 
was  not  liable.     (Eames  v.  Salem  and  Lowell  R.R.  Co.,  98  Mass.  560; 
see  Toledo,  Wabash  and  W.  R.R.  Co.  v.  Ferguson,  42  ///.  449;  Price  v. 


FOR    NEGLIGENCE.  I  53 

N.J.  R.R.  and  T.  Co.  3  Vroom,  19.)  Otherwise,  if  the  company  was  grossly 
negligent.     Illinois  Cent.  R.R.  Co.  v.  Wren,  43  ///.  77. 

21.  Insufficient  Barway. — If  an  insufficient  barway  is  placed 
by  a  railroad  company  in  a  fence  on  the  line  of  its  road,  at  the  request 
of  and  for  the  use  of  the  owner  of  adjoining  land,  and  he  uses  the  same 
and  does  not  complain  of  its  insufficiency  or  notify  the  company  to  alter 
it,  the  company  is  not  liable  for  damages  for  injuries  to  his  cattle,  hap- 
pening in  consequence  of  the  barway  being  too  low  to  turn  cattle. 
Enwright  v.  S.  F.  and  S.  J.  R.R.  Co.,  33  Cal.  230. 

22.  Must  Show  Defendant   to  be   in   Default. — A  com- 
plaint for  injury  by  negligence  must  show  the  defendant  to  be  in  actual 
default,  or  it  will  not  be  sustainable.     Taylor  v.  The  Atlantic  Mutual 
Insurance  Co.,  2  Bosw.  106. 

23.  Negligence    Defined. — Negligence  is  the  omission  to  do 
something  which  a  reasonable  man,  guided  by  those  considerations 
which  ordinarily  regulate  the  conduct  of  human  affairs,  would  do,  or 
doing  something  which  a  prudent  and  reasonable  man  would  not  do. 
It  is  not  absolute  or  intrinsic,  but  always  relative  to  some  circumstance 
of  time,  place,  or  person.     {Broom's  Leg.  Max.  329;  Richardson  v. 
Kier,  34  Cal.  63.)     Negligence  is  a  violation  of  the  obligation  which 
enjoins  care  and  caution  in  what  we  do;  but  this  duty  is  relative,  and 
where  it  has  no  existence  between  particular  parties  there  can  be  no 
such  thing  as  negligence  in  the  legal  sense  of  the  term.     Tonawanda 
R.R.  Co.  v,  Munger,  5  Den.  255. 

24.  Negligence,  Proximate  and  Remote. — When  the  neg- 
ligence of  the  defendant  is  proximate,  and  that  of  the  plaintiff  remote, 
the   action   can   be  sustained,   although   the   plaintiff  is    not  entirely 
without  fault.     So,  in  the  case  of  injury  to  a  domestic  animal  by  an 
engine  and  train,  if  the  plaintiff  were  guilty  of  negligence,  or  even  of 
positive   wrong   in   placing   his   horse,  on   the  road,    the   defendants 
were  bound  to  the  exercise  of  reasonable  care  and  diligence  in  the 
use    of    their    road    and    management   of    their    train,   and    if    for 
the   want   of  that   care   the   injury  arose,   they  are   liable.      (Need- 
ham  v.  S.  F.  and  S.J.  R.R.  Co.,  Cal.  Sup.  Ct.,  * Apl.   T.,  1869;  citing 
Kirwhacker  v.  C.  C.  and  C.  R.R.  Co.,  3  Ohio,  172;  C.  C.  and  C.  R.R. 
Co.   v.  Elliott,  4  Id.  474;  Bridge  v.  Grand  Junction  Railway  Co.,   3' 
M.  &   W.  246;  Davies  v.  Mann,  10  Id.  546;  Illidge  v.  Goodwin,  5 
C.  &.  P.  190;  Mayor  of  Colchester  v.  Brooke,  53  E.  C.  L.  376;  and 


154  FORMS    OF     COMPLAINTS. 

see,  also,  Kline  v.  C.  P.  R.R.  Co.,  Cal.  Sup.  Ct.,  Apl.  T.,  1869.)  The 
negligence  which  disables  a  plaintiff  from  recovering,  must  be  a  negli- 
gence which  directly,  or  by  natural  consequence,  conduced  to  the  injury. 
Richmond  v.  Sac.  Val.  R.R.  Co.,  18  Cal.  351. 

25.  Negligence,  how  Alleged. — Negligence  is  a  question  of* 
fact,  or  mixed  law  and  fact;  and  in  pleading  it  is  only  necessary  to  aver 
negligence  generally,   not  the   specific  facts  constituting   negligence. 
(McCauley  v.  Davidson,  10  Minn.  418.)     Where  the  negligence  con- 
sists in  the  omission  of  a  duty,  the  facts  which  are  relied  on  must  be 
alleged.     City  of  Buffalo  v.  Holloway,  7  N.Y.  493;  affirming  S.C.,  14 
Barb.  101;  Taylor  v.  Atlantic  Mutual  Ins.  Co.,   2   Bosw.   106;  Con- 
greve  v.  Morgan,  4  Duer,  439;  Seymour  v.  Maddon,  16  Q.  B.  326; 
S.C.,  71   Com.  Eng.  L.  R.   326;   and  see  McGinity   v.  Mayor  etc.,  5 
Duer,  674. 

26.  New  York  Rule  Discussed. — The  New  York  courts  seem 
to  ignore  all  distinction  between  cases  where  the  negligence  of  the 
plaintiff  is  proximate  and  where  it  is  remote;  and  in  not  limiting  the 
rule  of  liability,  which  they  announce,  to  the  former.     (Needham  v. 
S.F.  and  S.  J.  R.R.  Co.,  Cal.  Sup.  C(.,  Apl.  T.,  1869.)     The  false  rea- 
soning of  the  New  York  courts  upon  this  question  has  been  ably  discussed 
by  the  Supreme  Court  of  Connecticut,  in  the  case  of  (Isbell  v.  N.Y.  and 
N.H.  R.R.  Co.,  27  Conn.  404),  where  it  says:  A  remote  fault  in  one 
party,  does  not  of  course  dispense  with  care  in  the  other.     It  may  even 
make  it  more  necessary  and  important,  if  thereby  a  calamitous  injury 
can  be  avoided,or  an  unavoidable  calamity  essentially  mitigated.     So, 
also,  see  the  Supreme  Court  of  Vermont,  in  the  case  of  (Trow  v.  Ver- 
mont Central  R.R.  Co.,  24    Vt.  494),  where  the  distinction  between 
"proximate"  and  "remote"  negligence  is  clearly  defined.     See,  also, 
sustaining  these  principles,  Hill  v.  Warren,  2  Stark.  377;  7  Met.  274; 
12    Met.  415;    5    Hill,    282;    6  Hill,    592;  Williams   v.   Holland,  6 
C.  6-  P.  23. 

27.  Parties  Plaintiff'. — A  party  in  the  actual  possession  of  cat- 
tle at  the  time  of  the  injury  can  maintain  an  action  for  an  injury  to 
them  while  in  his  possession.     Polk  v.  Coffin,  9  Cal.  56. 

23.  Several  Acts  of  Negligence. — Where  several  acts  of 
negligence  cause  but  one  injury,  the  plaintiff  may  allege  all  the  acts  of 
negligence  in  one  count,  and  aver  that  they  were  the  cause,  and  any 


FOR    NEGLIGENCE.  155 

one  of  them  proved  upon  the  trial  will  sustain  his  complaint.     Dick- 
ens v.  N.Y.  Cent.  R.R.  Co.,  13  How.  Pr.  228. 

29.  When  Liable. — In  this  State,  a  railroad  company  is  respon- 
sible for  damages  done  cattle  by  running  over  them  on  the  track,  if  the 
*  accident  could  have  been  avoided  by  ordinary  care  and  prudence  on 
the  part  of  the  company,  and  this  though  the  owner  of  the  cattle  per- 
mits them  to  run  at  large  near  the  line  of  the  railroad.  (Richmond  v. 
Sac.  Val.  R.R.,  18  Cal.  351.)  But  if  they  could  not  by  ordinary  care 
and  prudence  avoid  the  accident,  they  are  not  liable.  Id. 


No.  410. 

For  Kindling  a  Fire  on  Defendant's  Land,  whereby  Plaintiff's  Prop- 
erty was  Burned. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on  the day  of ,    18 .  . ,    at 

,  the  plaintiff  was  possessed  of  about 

acres  of  land,  in ,  on    which    there    was    an 

orchard  and  fences,  and  also  a  barn  containing 

tons  of  hay. 

II.  That   the   defendant   on   that  day   intentionally 
kindled   a   fire    on    his    land    next    adjoining    to    the 
plaintiff's,  and  at  the  distance  of yards  there- 
from, and  so  negligently  watched  and  tended  the  said 
fire  that  it  came  into  the  plaintiff's  said  land,  consumed 

said  barn  and  hay,  of  the  value  of dollars,  and 

also \_state  special  damage\. 

{Demand  of  Judgment.] 


30.  Against  Railroad  Companies. — The  fact  that  fire  was 
communicated  from  the  engine  of  defendant's  cars  to  plaintiff's  grain, 
with  proof  that  this  result  was  not  probable  from  the  ordinary  working 
of  the  engine,  is  prima  facie  proof  of  negligence  sufficient  to  go  to  the 


156  FORMS    OF     COMPLAINTS. 

jury.  (Hull  v.  Sacramento  Val.  R.R.  Co.,  14  Cal.  387.)  Under  a 
statute  making  railroad  companies  liable  for  fires  "communicated" 
by  their  engines,  a  railroad  company  is  liable  for  the  destruction  of 
woods  half  a  mile  from  its  track,  by  a  fire  started  by  a  spark  from  one 
of  it's  engines,  and  spreading  across  land  of  different  proprietors,  and  a 
highway,  in  a  direct  line  to  said  woods.  Perley  v.  Eastern  R.R.  Co.  , 
98  Mass.  414;  see,  also,  Illinois  Cent.  R.R.  Co.  v.  McClelland,  42  ///. 
355;  Same  v.  Mills,  Id.  407. 

No.  411. 

For  Chasing  Plaintiff'  s  Cattle. 
[TITLE.] 

* 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  .....  day  of  .........  ,   18  .  .  ,  at 

........  ,  the  defendant  chased  and  drove  about  [de- 

scribe the  cattle~\  of  the  plaintiff. 

II.  That  by  reason   thereof,  the  said   [describe  the 
cattle~\  of  the  plaintiff,  of  the  value  of  ........  dollars, 

were  greatly  damaged  and  injured,  and      .......   of 

them  died,  and  the  residue  of  them  were  injured  and 
rendered  of  no  value  to  the  plaintiff,'  to  plaintiff's  damage 
in  ........  dollars. 

[Demand  of  Judgment.  \ 


No. 

For  Keeping  Dog  Accustomed  to  Bite  Animals. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned  the  de- 
fendant wrongfully  kept  a  dog,  well  knowing  him  to  be 
of  a  ferocious  and  mischievous  disposition,  and  accus- 


FOR    NEGLIGENCE.  157 

tomed  to  attack  and  bite  [sheep  and  lambs,  or  as  the 
case  may  be\. 

II.  That  on  the day  of ,   18 .  . ,  at 

,  the  said  dog  while  in  the  keeping  of  the  de- 
fendant, attacked  and  bit  [or  hunted,  chased,  bit,  and 
worried],    [sheep  or  lambs,  or  as  the  case  may  be\  of 
the  plaintiff. 

III.  That  in  consequence  thereof,  the  said  [sheep  and 
lambs,    or   as   the   case   may  be~\,    of   the   plaintiff,    of 

the  value  of dollars,  died,  and  became  of  no 

value  to  the  plaintiff,  and  the  residue  of  the  said  sheep 
and  lambs  of  the  said  plaintiff,  being  also  of  great  value, 
were  injured,  and  rendered  of  no  value  to  the  plaintiff. 

[Demand  of  Judgment^ 

30.  Joint   Action. — In  New  York,  a  joint  action  does  not  lie 
against  the  joint  owners  of  dogs,  by  whom  the  sheep  of  a  third  person 
have  been  worried  and  killed.      Van  Steenberg  v.  Tobias,  17  Wend. 
562;  Auchmuty  v.  Ham,  i  Den.  495. 

31.  Ownership. — It  is  not  necessary  to  prove  that  the  defendant 
owned  the  dog.    It  is  sufficient  to  prove  that  the  defendant  kept  the  dog. 
Wilkinson  v.  Parrott,  32  Cal.  102. 

32.  Vicious  Habits. — When  injury  to  plaintiffs  horse  was  in- 
flicted by  that  of  the  defendant,  whilst  trespassing,  it  was  held  unneces- 
sary to  make  any  averment  of  vicious  habits.     Dunkle  v.  Koeker,  i  r 
Barb.  387;  Popplewell  v.  Pierce,  10  Cush.  509. 


158  FORMS    OF     COMPLAINTS. 

No.  413. 

For  Shooting  Plaintiff's  Dog. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.     That  on    the day  of ,    1 8 .  . ,  at 

,  the  defendant  maliciously  shot  and  killed  a 

dog,  the  property  of  the  plaintiff,  of  the  value  of 

dollars. 

{Demand  of  Judgment^ 

JVo.  414. 

For   Untying  Plaintiff's  Boat,  by  Reason  of  which  it  was  Carried  by 
the  Current  against  a  Bridge,  and  Injured. 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on   the day   of ,  1 8 .  . ,  the 

plaintiff  was  possessed  of  a  fishing  boat,  called  \_etc.~],  of 
the  value  of dollars. 

II.  That  the  defendant  maliciously  untied  said  boat, 
and  it  therefore  floated  with  the  steam  against  a  bridge, 
and  was  thereby  broken  and  destroyed. 

[Demand  of  Judgment.} 


33.  Collision. — In  case  of  collision  occasioned  by  the  fault  of  a 
vessel  under  compulsory  pilotage,  in  going  at  too  great  speed,  where  no 
contributory  negligence  on  the  part  of  the  master  or  crew  is  proved, 
the  owners  of  the  vessel  are  not  liable.  (G.  S.  N.  Co.  z>.  B.  and  C. 
S.  N.  Co.,  L.  R.  4  Exch.  238.)  When  a  vessel  is  properly  in  charge 


FOR    NEGLIGENCE.  159 

of  a  licensed  pilot,  the  owner  is  not  responsible  for  damages  which 
may  ensue  from  the  negligence  or  misconduct  of  the  pilot.  Griswold 
v.  Sharpe,  2  Cal.  17. 


No.  415. 

For  Flowing  Water  from  Roof  on  Plaintiff's  Premises. 
[TITLE.] 

The  plaintiff  complains  and  alleges: 

I.  That    on    the  ....  day    of ,  1 8 .  . ,    the 

plaintiff  was  lawfully  possessed  of  a  dwelling  house  and 
premises,   in  the   County  aforesaid,  and   in   which  the 
plaintiff  and  his  family  then  lived. 

II.  That  the  defendant  wrongfully  erected  a  building 
near  the  said   dwelling   house   of  the  plaintiff,   in  so 
careless  and  improper  a  manner,  that  by  reason  thereof, 
on  said  day,  and  at  other  times  afterwards  and  before 
this  action,  large  quantities  of  rainwater  ran  from  said 
building  upon  and  into  the   said  dwelling  house  and 
premises   of   the  plaintiff,  and  the  walls,   ceilings   [or 
otherwise  state  damage  done,  according  to  the  facf\,  and 
other  parts   thereof  were  thereby  wet  and  damaged, 
and  became  not   fit  for  habitation,  to  the  damage  of 
plaintiff  in  . dollars. 

{Demand  of  Judgment^ 


l6o  FORMS    OF     COMPLAINTS. 


JVo.  416. 

For    Negligence  of  Mill    Owners,    whereby     Plaintiffs     Land   was 

Overflowed, 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on    the  ....  day    of ,   18 .  . ,  the 

plaintiffs  were,  and  still  are  the  owners  of  a  valuable 
mining  claim    [or  otherwise    designate   the  proper ty\, 

situated  at ,  upon  which  they  had  bestowed 

great  labor  in  putting  the  same  in  working  order. 

II.  That  at  the  same  time  the  defendants  were  the 
owners  of  [or  were   possessed  of  and  using]  a  reser- 
voir situated  on ,  wherein   they    collected    a 

large  body  of  water  which  would  otherwise  have  flowed 
down  the  said  stream,  and  were  engaged  in  furnishing 
such  water  to  miners  and  others,  by  means  of  a  ditch  or 
canal. 

III.  That  afterwards,  on  the  ...     day  of , 

1 8 . . ,    the     plaintiffs     were     engaged    in  their    work 
as   aforesaid,  and   the    defendants'    said  reservoir,    by 
reason  of  some  defect  in  its  construction,  or  insufficiency 
for   the  purpose  for    which  it  was  constructed,   broke 
away,   discharging  an   immense  and  unusual  body  of 
water,  which  they  had  collected  in  said  reservoir;   which 
said  water  so  discharged  flowed  in  and  upon  plaintiffs' 
mining  claim  [or  as  the  case  may  be\,  filling  the  same 
with  large  quantities  of  earth,  stone,  and  rubbish,  to  the 
damage  of  plaintiffs  in dollars. 

[Demand  of  Judgment.  ] 


FOR    NEGLIGENCE.  l6l 

34.  Avoidance  of  Injuries. — The  fact  that  plaintiffs  could  have 
prevented  the  damage  by  pulling  off  a  board  from  defendant's  flume  is 
no  defense,  because  they  were  not  obliged  to  avoid  the  injuries  com- 
plained of  by  committing  a  trespass.     Wolfe  v.  St  Louis  Ind.  Wat.  Co., 
15  Cal.  319. 

35.  Construction   of   Water  Ditch. — The  question  of  negli- 
gence in  the  management  of  a  water  ditch,  and  the  degree  of  it,  must 
necessarily  depend  in  a  great  measure  upon  the  surrounding  facts,  such 
as  the  existence  and  exposure  of  property  below  the  dam.     (Wolfe  v. 
St  Louis  Indepen.  Water  Co.,  10  Cal.  541.)     The  owner  of  a  dam  is 
bound  to  see  to  his  own  property,  and  to  so  govern  and  control  it  that 
injury  may  not  result  to  his  neighbors.     (Fraler  v.  Sears  Union  Water 
Co.  12   Cal.  555.)     In  consequence  of  the  negligent  construction  of  a 
cut  made  by  the  defendants,  the  waters  of  a  neighboring  river  flooded 
the  adjoining  land.      The  plaintiff  owning  land  east  of  the  cut  closed 
the  culvert  to  prevent  his  land  being  flooded;  but  the  owners  on  the 
west,  re-opened  it  and  the  plaintiff's  land  was  flooded  in  consequence. 
Held,  that  defendants  were  liable  for  the  whole  damage,  whether  the 
opening  was  right  or  wrong.     Collins  v.  Middle  Level  Comm'rs,  L.  R. 

4  C.P.  279. 

• 

36.  Defect  in  Construction  of  Dam. — In  an  action  for  dam- 
ages for  breaking  defendants'  dam  and  flooding  the  plaintiffs'  mining 
claim,  where  the  complaint  is  in  one  count,  and  charges  that  "the  de- 
fendants' said  reservoir,  by  reason  of  some  defect  in  its  construction, 
insufficiency  for  the  purpose  for  which  itVas  constructed,  or  careless- 
ness and  mismanagement  on  the  part  of  the  said  defendants,  broke 
away,"  etc.:    Held,  that  the   complaint  is   insufficient.      (Hoffman  v. 
Tuolumne  County  Water  Co.,  10  Cal.  413.)    Whether  such  negligence 
arose  from  the  want  of  care  in  constructing  the  dam,  or  want  of  care  in 
letting  off  the  water,  is  not  sufficiently   material  under  our  system  of 
pleading,  to  require  separate  counts.     Id. 

37.  Degree    of   Care  Necessary. — In  an  action  to  recover 
damages  for  an  alleged  injury  to  plaintiff's  land,  resulting  from  the  care- 
less management  of  defendant's  water  ditch,  which  traversed  the  land : 
Held,  that  the  defendant  was  bound  to  exercise  no  greater  care  to  avoid, 
the  alleged  injury  to  the  adjoining  lands  than  prudent  persons  would 
employ  about  their  own  affairs,  under  similar  circumstances.     Camp- 
bell v.  B.  R.  and  Aub.  W.  and  M.  Co.,  35  Cal  679. 

1 1 


1 62  FORMS    OF    COMPLAINTS. 

38.  Form  of  Complaint. — A  complaint  which  alleges  that  the 
plaintiffs  were,  on  a  certain  day,  the  owners  and  proprietors  of  a  certain 
valuable  water  ditch  for  the  purpose  aforesaid,  and  that  afterwards,  on 
the  same  day  and  year,  at,  etc.,  aforesaid,  the  said  defendants'  ditch  was 
so  badly  and  negligently  constructed  and  managed,  and  the  water 
therein  so  negligently  and  carelessly  attended  to,  that  said  ditch  broke 
and  gave  way,  and  the  water  therein  flowed  over  and  upon  the  ditch  of 
plaintiffs,  greatly  damaging  and  injuring  the  same,  and  carrying  down 
therein  and  thereon  great  quantities  of  rock,  stone,  earth  and  rubbish, 
and  breaking  said  plaintiffs'  ditch,  and  depriving  them  of  the  use  and 
profit  of  the  water  flowing  therein,  to  said  plaintiffs'  damage  $3,000, 
and  thereof  they  bring  suit,  is  sufficient.  Tuolumne  County  Water 
Co.  v.  Columbia  and  Stanislaus  Water  Co.,  10  Cal.  193. 


For   Undermining  Plaintiff's  Land. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   at   the   times*   hereinafter   mentioned,   the 
plaintiff  was   possessed  of  certain  land,  a  part  of  his 
farm  in  the  Town  of,  etc.  \briefly  describe^. 

II.  That  in  the  month  of ,  18 .  . ,  the  defend- 
ant wrongfully  and  negligently  excavated  the  land  adja- 
cent to  the  plaintiff's  said  land,  without  leaving  proper 
and  sufficient  support  for  the  soil  of  the  plaintiff's  land 
in  its  natural  state,  whereby  it  sank  and  gave  way,  to 
the  damage  of  plaintiff  in dollars. 

{Demand  of  Judgment. \ 


FOR    NEGLIGENCE.  163 

No.  418. 

For   Undermining  Plaintiff 's  'Building. 

[TITLE.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  plaintiff 
was  possessed  of  certain  land,  with  buildings  thereon, 
\briefly  describe  the  premises],  which  were  supported 
by  the  adjacent  land  and  the  soil  thereof,  and  that  the 
plaintiff  was  entitled  to  have  them  so  supported. 

II.  That   on    the  ....  day  of ,   187 .,    the 

defendant   wrongfully  and    negligently  excavated   the 
land  adjacent  to  plaintiff's  said  land  and  buildings,  and 
removed  the  soil  therefrom,  without  leaving  sufficient 
support  for  the  plaintiff's  said  land  and  buildings,  by 
reason  whereof  the  same  sank  and  gave  way,  and   the 
house  fell  in  and  was  destroyed,  and  the  furniture  of  the 
plaintiff  was   damaged    and  broken;  and   the   plaintiff 

was  compelled  to    pay dollars,  in  procuring 

another  house,  and dollars  in  removing  and 

repairing  his  goods,  and dollars  in  removing 

the  ruins  of  the  house  and  rebuilding  the  same,  to  his 
damage  in dollars. 

\Demand  of  Judgment.  \ 


39.  Reversioner,  Allegation  by. — That  at  the  times  herein- 
after mentioned,  the  plaintiff  was,  and  still  is  owner  of  certain  land 
\briefly  describe  the  same],  which  was  then  in  the  occupation  of  A.  B., 
as  tenant  thereof  to  the  plaintiff. 


164  FORMS    OF    COMPLAINTS. 

No.  419. 

For  Not  Using  Due  Care  and  Skill  in  Repairing. 

[TITLE.] 

» 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  watchmaker,  at  ........  , 

and  on  the  ....  day  of  ........  ,    1  8  .  .  ,  the  plaintiff 

delivered  to  him  as  such  a  gold  watch  of  the  plaintiff, 
of  the  value  of  ........  dollars,  to  be  repaired  by  the 

defendant,  for  reward. 

II.  That  the  defendant  then  and  there  undertook  said 
employment,  and  to  use  due  care  and  skill  in  repairing 
said  watch,  and  to  take  due  care  thereof  while  in  his 
possession,  and  to  re-deliver  the  same  to  the  plaintiff  on 
request. 

III.  That  the  defendant  did  not  take  proper  care  of 
the  said  watch  whilst  in  his  possession,  and  did  not  use 
due  care  or  skill  in  repairing  the  said  watch,  but  on  the 
contrary  did  his  work  in  so  careless  and  unworkman- 
like a  manner  that  no  benefit  was  derived  therefrom,  and 
the  said  watch  was  broken  and  rendered  worthless. 

[Demand  of  Judgment.  .] 


.  420. 

Against   Watchmaker,  for  not  Returning    Match. 

[TlTL«.] 

The  plaintiff  complains,  and  alleges: 

I.  [As  in  Form  419]. 

II.  [As  in  Form  419]. 

III.  That  after  a  reasonable  time  for  the  repair  of 


FOR    NEGLIGENCE.  165 

said  watch,  and  on  or  about  the  ....  day  of , 

the  plaintiff  requested  the  defendant  to  re-deliver  the 

said  watch;  but  he  refused  so  to  do. 

% 

\_Demand  of  Judgment. \ 


CHAPTER   IV. 


SLANDER    OF     TITLE. 


No. 

Common  Form. 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....  day  of  ........  1  8  .  .  ,  he  was 

the  owner  in  fee  of  \_state  what  property^  situated  in 
........  ,  [describe  it  particularly]. 

II.  That  on  that  day,  at  ........  ,  the    defendant, 

maliciously  and  without  cause,  spoke  in  the  presence  of 
A.  B.  and  others  [name  fhem\,  the  following  words  con- 
cerning the  plaintiff  and  his  property  [insert  the  exact 
language,  with  innuendoes^. 

III.  That  the  said  words  were  false. 

IV.  That  said  A.  B.  [or  others,  naming  them~\,  were 
there  negotiating  for  the  purchase  of  said  premises,  and 
that  by  reason  thereof  said  A.  B.  [Brothers],  was  dis- 
suaded from  making  such  purchase. 

V.  That  by  reason  of  the  said  words,  the  said  A.  B. 
refused  and  still  refuses  to  purchase  the  said  property 


1 66  FORMS    OF    COMPLAINTS. 

from  the  plaintiff,  in  consequence  thereof,  and  the 
plaintiff  has  bfeen  by  reason  thereof  unable  to  sell  the 
same,  and  has  been  otherwise  greatly  injured  thereby. 

[Demand  of  Judgment.] 


1.  Action  in  General. — As  to  the  action  for  slander  of  title  in 
general,  see  (Gerand  z>.  Dickinson,  4  Coke,  18;  Hargrave  v.  Le  Breton,  4 
Burr.  2,422;  Earl  of  Northumberland  v.  Byrt,  Cro.  Jac.  163;  Vaug- 
han  v.  Ellis,  Id.  213;  Smith  v.  Spooner,  3  Taunt.  246;  Pitt  v.  Dono- 
van,  i   Maule  &  S.  639;  2  Greenl.  Ev.  428.)     As   to   what   plaintiff 
must   establish,    see    Like   v.   McKinstry,  41    Barb.    186;    see,  also, 
Townshend  on  Sland.  and  Lib.  p.  240;  and  I  Stark,  on  Sland.  IQI. 

2.  Damage. — The   damage    sought   to   be    recovered   must   be 
specially  alleged  in  the  complaint,  and  substantially  proved  on  the  trial. 
It  must  be  a  pecuniary  damage,  and  must  be  the  natural  and  legal  con- 
sequence of  the  wrong..    (Kendall  v.  Stone,  2  Sandf.  269;  5  N.Y.  14.) 
When  the  damages  arise  from  the  plaintiffs  being  precluded  from 
selling  or  mortgaging  the  property  which  is  the  subject  of  the  slander, 
it  is  essential  in  stating  a  cause  of   action  to  name  the  person  or 
persons  who  refused  from  that  cause  to  loan  or  purchase.     An  omission 
to  do  so  will  rAider  the  complaint  demurrable.     Linden  v.  Graham  i 
Duer,  670;  N.F.   Leg.  Obs.  185. 

3.  Essential  Averments. — To  maintain  an  action  for  slander  of 
title  to  lands,  the  words  must  be  false,  must  be  uttered  maliciously,  and 
be  followed  as  a  natural  and  legal  consequence  by  a  pecuniary  damage, 
which  must  be  specially  alleged  and  proved.    (Kendall  v.  Stone,  i  Seld. 
14;  reversing  S.C.,  2  Sandf.  269;  see  Like  v.  McKinstry,  41  Barb.  186.) 
And  the  name  of  the  person,  as  above  stated,  who  refused  to  purchase 
or  make  the  loan  or  purchase  in  consequence  of  the  slander,  should  be 
stated  in  the  complaint.     3  Bing.  (N.C.)  371 ;  Cro.  Car.    140;  Cro. 
Jac.  484;  3  Keb.  153;  Style,  169;  5  N.Y.  14;  4  Wend.  537;  Saund.  PI. 
<&*  Ev.  243;    i  Hall,  399;  Linden  v.  Graham,  i  Duer,  670;    Bailey  v. 
Dean,  5  Barb.  297. 

4.  False  Statement  in  Regard  to  Patent  and  Manufac- 
tures.— For  complaint  in  an  action  to  recover  damages  for  false  state- 
ments made  by  the  defendant,  in  regard  to  patent  and  manufactures  of 


SLANDER     OF     TITLE.  167 

the   plaintiff,  to  the  injury  of  his  business,  see  Snow  v.   Judson,  38 
Barb.  210. 

5.  Malice. — It  is  error  for  the  Court  to  instruct  the  jury  that 
where  a  person  injuriously  slanders  the  title  of  another,  malice  is  pre- 
sumed, or  that  fraud  could  not  be  presumed,  but  may  be  established  by 
circumstances,  but  not  of  a  light  character;  the  circumstances  must  be 
of  a  most  conclusive  nature.     (McDaniel  v.  Baea,  2  Cal.  326.)    Malice 
and  damage  are  both  essential  requisites  to  sustain  an  action  for  language 
concerning  a  thing.     To  these  requisites  are  usually  added  a  third,  that 
the  language  is  false.     Townshendon  Sland.  and  Lib.  239. 

6.  Probable  Cause — Special  Damages. — To  sustain  an  action 
for  slander  of  title,  there  must  be  want  of  probable  cause,  and  special 
damages  must  be  alleged,  and  that  circumstantially .     A  general  allega- 
tion of  loss  will  not  be  sufficient.     Nor  will  a  defendant  be  responsible 
for  what  he  says  or  does  in  pursuance  of  a  claim  of  title  in  himself, 
provided   there  be  good  ground  for  such  claim.     (Bailey  v.  Dean,  5 
Barb.    297.)      The   averment  that  it   was  without  probable  cause  is 
proper. 

7.  Restriction  of  Action. — The  action  for  slander  of  title  is  not 
restricted  to  language  affecting  real  property.     It  lies  for  slander  of  title 
to  personal  property.      Towns hend  on  Sland.  and  Lib.  245. 

8.  Slander   of  Title  Defined. — Slander   of  title   is  publishing 
language,   not  of  the  person,  but  of  his  right  or  title  to  something. 
Townshendon  Sland.  and  Lib.  240. 

9.  When  Action  •will  Lie. — When  a  party  is  prevented  from 
selling,  exchanging,  or  making  any  advantageous   disposition  of  lands 
or  other  property,  in  consequence  of  the  impertinent  interference  of  the 
defendant,  he  may  maintain  an  action  for  the  inconvenience  which  he 
has  suffered,    but  special    damage   must  be   shown.       i    Starkie  on 
Sland.  191. 


CHAPTER  V. 

TRESPASS. 

No.  422. 

i.      For    Malicious   Injury,  Claiming    Increased  Damages  •  under    the 

Statute. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the ....  day  of ,  187 . ,  the  defend- 
ant maliciously  and  wantonly  destroyed  certain  orna- 
mental trees,  of  the  value  of dollars,  the 

property  of  the  plaintiff,  growing  upon  his  land  [or  as 

the  case  may  be],  at [by  barking  and  girdling 

them,  or  otherwise  state  nature  of  injury,  if  not  totally 
destroyed^,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

[Demand  of  Judgment  for    Treble  Damages.] 

L     Abatement  of  Action. — A  trespass  dies  with  the  trespasser. 
O'Connor  v.  Corbitt,  3  Cat.  370. 

2.  Agent. — If  the  trespass  has  been  committed  by  one  acting  as 
the  agent  of  the  defendant,  it  may  be  so  alleged.    (St  John  v.  Griffith,  i 
Abb.  Pr.  39.)     Where  two  of  the  defendants  actually  committed  the  act, 
and  a  third  defendant  instigated  and  employed  them  to  do  it,  it  may  be 
so  alleged.     Ives  v.  Humphreys,  i  E.  D.  Smith,  196. 

3.  Assignee. — That  an  assignee  in  trust  for  the  benefit  of  credit- 
ors may  maintain  an  action  of  trespass  against  any  person  who  interferes 
with  the  assigned  property,  see  (McQueen  v.  Babcock,  41  Barb.  337.) 


(        FOR    TRESPASS.  169 

A  claim  for  damages  caused  by  a  trespass  on  land  is  assignable,  and  the 
assignee  may  maintain  an  action  to  recover  the  same.  More  v.  Masini, 
32  Cal.  590. 

4.  Co-Trespassers,  Allegation  of. — If  it  be  sought  to  charge 
another  with  the  trespass,  at  whose  instigation  and  request  the  trespass 
was  committed  singly,  it  may  be  alleged  as  follows:  "That  on  the,  etc., 
one  A.  B.,  at  the  instigation  and  request  of  the  defendant,  and  being 
by  him  employed  thereto  and  assisted  therein,  broke  and  entered,"  etc. 
Or,  if  it  be  sought  to  make  both  co-tresspassers,  it  may  be  alleged,  "  That 
on,  etc.,  the  defendant  A.  B.,  at  the  instigation  and  request  of  the  de- 
fendant C.  D.,  being  by  him  employed  thereto  and  assistea  therein, 
broke  and  entered,^'  etc.     (Ives  v.  Humphreys,    i   E.  D.  Smith,  196.) 
For  "all  persons  who  direct  or  request  another  to  commit  a  trespass,  are 
liable  as  co-trespassers."     (2  Milliard  on  Torts,  293;  Herving  v.  Hop- 
pock,  15  N.Y.  413.)     Where  a  trespass  has  been  committed  by   two 
or  more,  by  joint  act  or  co-operation,  they  are  all  trespassers,  and  liable 
jointly  or  severally,  even  to  the  extent  of  exemplary  damages.     (2  Hill, 
on  Torts,  292;   Hair  v.  Little,  28  Ala,  236.)     If  they  acted  in  concert, 
or  the  act  of  one  naturally  produced  the  act  of  the  other,  (Brooks  v. 
Ashburn,  9  Geo,  297;    Sutton  v,  Clark,  6  Taunt.  29.)     Where  several 
defendants  are  declared  against  jointly,  but  no  joint  trespass  is  proved, 
the  plaintiff  can  introduce  evidence  of  a  several  trespass  against  one  of 
the  defendants,  and  recover  against  such  defendant.   Aliter,  if  a  joint  tres- 
pass has  been  proved.     McCarronz;.  O'Connell,  7  Cal.  152. 

5.  Damages,  Exemplary  and  Vindictive. — Damages  can- 
not be  recovered  for  a  trespass  not  malicious  in  its  character.     (Selden 
v.  Cashman,  20  Cal,  56.)     And  the  rule  of  damages  depends  upon 
the   presence  or  absence  of  fraud,  malice,  or  oppression.     (Dorsey  v, 
Manlove,    14  Cal.   554.)     In  the  absence  of  such  circumstances  the 
rule  is  compensation  merely,  and  this  refers  solely  to   the  injury  done 
to  the  property,  and  not  to  collateral  or  consequential  damages  resulting 
to  the  owner.     (Dorsey  v.  Manlove,  14  Cal.  554.)     A  party  committing 
a  trespass  can  be  made  liable  for  such  damages  only  as  are  the  proxi- 
mate result  of  the   trespass.     (Story  v.  Robinson,  32  Cal.  205.)     The 
right  of  the  plaintiff  to  recover  damages  is  not  affected  by  the  fact  that 
the  trespass  was  not  willful.     (Maye  v.  Tappan,  23  Cal.  306.)     Where 
trespass  is  committed  from  wanton  or  malicious  motives,  or  a  reckless 
disregard   of  the  rights   of  others,  or  under   circumstances    of  great 
hardship  or  oppression,  the  rule  of  mere  compensation  is  not  enforced, 


I7O  FORMS    OF    COMPLAINTS. 

and  punitive   or  exemplary  damages   may   be   enforced.     Dorsey   v. 
Manlove  14  Cal.  553. 

6.  Designation  of  Land. — The  lines   of  a  quarter  section   ot 
government   land,  distinctly   marked   by   natural   boundaries   and   by 
stakes  placed  at  convenient  distances,   so  that  the  lines  can  .be  readily 
traced,  are  sufficient  to  authorize  an  action  for  trespass  thereon  under 
the  provisions  of  the  Act  of  April  1 1,  1850.     (Taylor  v.  Woodward,  10 
Cal.  90;  see  the  case  of  Stockton  v.  Garfrias,  12  Cal.  315.)     When  two 
mining  claims   adjoin  each  other,  the  ignorance  of  the  owners  of  one 
company  of  the  dividing  line  will  not  excuse  a  trespass  upon  the  land 
of  the  ptMer.     (May  v.  Tappan,  23  Cal.  306;  see  Nevada  and  Sac.  Co. 
Canal  Co.  v  Kidd,  Cal.  Sup.  Ct.,  Apt:  T.,  1869.)     Where   the  town   is 
subdivided  intermediate  the  trespass  may  be  laid  to  have  been  done  in 
the   original  town.     Renaudet  v.  Crocken,  i   Cat.  167;  S.  C.  Col.  &  C. 
Cas.  219. 

7.  Ditch. — A  person  has  no  right  to  run  a  ditch  through  the 
enclosure  of  another,  without  his  consent.     Weimer  v.  Lorvery,   1 1 
Cal.  104. 

8.  Entry  -without  Force. — When  the  complaint  charges  an 
entry  upon  and  injury  to  plaintiff's  property,  and  does  not  charge  force, 
the  issue  was  held  to  be  confined  to  the  actions  of  the  party  after  the 
entry,    and   to  .the   damages   resulting   from   the   same.      Turner   v. 
McCarthy,  4  E.  D.  Smith,  247. 

9.  Equitable  Relief. — In  an  action  for  trespass,  the  law  and 
equity  must  not  be  inseparably  mixed  together.  The  allegations  must  be 
separate,   distinct,   certain.    (See  Gates  v.  Kieff,  7  Cal.  124.)     But  it  is 
not  necessary  that  there  should  be  express  words,   showing  where  the 
declaration  in  trespass  leaves  off,  and  the  bill  in  equity  begins.     Id. 

10.  Essential  Facts. — As  to  the  essential  facts  to  maintain  the 
action,  see  (Willard  v.  Warren,   17    Wend.   257.)      When  a  pleader 
wishes  to  avail  himself  of  any  statutory  privilege  or  right,  given  by 
particular  facts,  those  facts  which  the  statute  requires  as  the  foundation 
of  the  right  must  be  stated  in  the  complaint.     Dye  v.  Dye,  u  Cal. 
163- 

11.  Estate  in  Possession,  Reversion  and  Remainder. — 

In  New  York,  any  person  seized  of  an  estate  in  possession,  remainder, 
or  reversion,  may  bring  an  action  under  the  statute,  notwithstanding  any 


FOR    TRESPASS  171 

intervening    estate   for   life   or  years.      Van   Dusen     v.  Young,    29 
Barb.  9. 

12.  Forcible  and  Unlawful. — The  acts  alleged  must  be  essen- 
tially acts  of  trespass  forcible  and  unlawful,  but  it  need  not  be  alleged 
that  the  entry  was  unlawful.     Van  Deusen  v.  Young,  29  Barb.  9. 

13.  Foreign  Miners. — The  fact  that  parties  are  foreigners,  and 
have  not  obtained  a  license  to  work  in  the  mines,  affords  no  apology 
for  trespass.     Mitchell  v.  Hagood,  6  Cal.  159. 

14.  Joinder  of  Cause. — In  a  complaint  for  trespass  the  plaintiff 
claimed  $500,  and  alleged  value  of  the  property  destroyed,  and   $500 
damages.    Defendant  demurred  on  the  ground  that  two  causes  of  action 
were  improperly  joined,  and  the  court  below  sustained  the  demurrer. 
Held,  that  this  was  error.     (Tendesen  v.  Marshall,  3  Cal.  440.)     In  an 
action  of  trespass,  an  allegation  of  injury  to  the  "  site  for  a  dam,"  and 
"  dam  in  course  of  construction  thereon,"  and  "  site  for  a  canal,  and 
canal  thereon  projected,  surveyed,  and  commenced,"  constitutes  but  a 
single  cause  of  action.     They  are  land,  and  for  the  purposes  required 
must  necessarily  be  connected  and  continuous.     (Nev.  Co.  and  Sac. 
Canal   Co.  v.  Kidd,  Cal.Sup.Ct.,Apl.  T.  1869.)     But   the  water  right 
when  acquired,  although  intimately  related  to  and  connected  with  the 
site  for  a  canal  and  dam,  and  canal  commenced,  etc.,  give  rise  to  separate 
and  distinct  causes  of  action.     (Id.}     The  owner  of  land  may  join   in 
the  same  complaint,  a  claim  for  damages  as  assignee,  caused  by  a  trespass 
on  the  land  while  it  was   owned  by  his  grantor,  and   a   claim'or  an 
injunction  for  a  threatened  injury  to  the  land.     (More  v.  Massnie,  32 
Cal.  590.)     A  party   cannot  join   an  action  of  trespass  quare  clausam 

fregit  with  ejectment,  and  pray  for  an  injunction.     Bigelow   v'.  Grove, 
7  Cal.  133. 

15.  Joinder   of  Parties. — A  plaintiff  cannot  by   mere   notice 
bring  in  parties  not   sued  in  an  action  of  trespass  when  there  is   no 
pretense  that  they  were  trespassers.     (Pico   v.  Webster,  14  Cal.  202.) 
In  an  action  by  the   parties  whose  property  has  been  wrongfully  taken 
under  legal  process,  all  who  join  or  participate  in  the  trespass  are  jointly 
liable   as  joint  trespassers.     Lewis  v.  Johns,  34  Cal.  629;  as  to  parties 
defendant,  see  Vol  i.,  p.  115. 

16.  Jurisdiction. — District  Courts  have  jurisdiction  of  all  actions 


172  FORMS    OF    COMPLAINTS. 

to  recover  damages  for  trespass  upon  lands,  regardless  of  the  amount 
of  damages  claimed.     Cullen  v.  Daugredge,  17  Cal.  67. 

17.  Mining  Claim. — In  an  action  for  a  trespass  upon  a  mining 
claim,  where  the  complaint  avers  that  the  defendants  are  working  upon 
and  extracting  the  mineral  from  the  claim,  and  prays  for  a  perpetual 
injunction,  and  the  answer  admits  the  entry  and  work,  and  takes  issue 
upon  the  title  of  the  mine,  and  the  jury  find  in  favor  of  the  plaintiffs,  the 
Court  should  decree  the  equitable  relief  sought,  and  enjoin  defendants 
from  future  trespasses.     McLaughlin  v.  Celly,  22  Cal.  211. 

18.  Ouster. — No   ouster   is  necessary  to   maintain  an   action  of 
trespass.    Any  unlawful  entry  is  enough.    Rowe  v.  Bradley,  12  Cal.  226. 

19.  Party  Wall. — For  averments  on  a  complaint  for  undermin- 
ing the  party  wall  of  plaintiffs  house,  see  (4  Duer.  53.)     For  averments 
of  complaint  for  an  injunction  restraining  defendant  from  excavating  to 
undermine  plaintiffs  land,  see  Farrand  v.  Marshall,  19  Barb.  380. 

20.  Possession  and  Right  of  Possession. — In  an  action  of 
trespass  upon  real  property,  the  plaintiff  may  recover  upon  alleging  and 
showing,  in  addition  to  the  injury  complained  of,  his  possession  of  the 
premises;  and  his  right  to  the  possession  is  not  involved  unless  the 
defendant  tenders  an  issue  upon  that  fact,  and  in  that  case  (Holman  v. 
Taylor,  31   Cal.  338)  the  right  of  recovery  depends  both  on  possession 
in  fact  and  the  right  of  possession.     (Pollock  v.  Cummings,  Cal.  Sup. 
Ci.,  uct.  T.,  1869.)      Possession  in  the  plaintiff  is  sufficient  to  enable 
him  to  maintain  an  action  for  trespass,  and  although  a  higher  title  may 
be  attempted  to  be  set  up,  the  failure  to  sustain  it  will  not  operate 
against  the  right  to  recover  damages.     (McCarron  v.  O'Connell,  7  Cal. 
152;  Bequette  v.  Caulfield,  4  Cal.  278;  Fitzgerald  v.  Urton,  5  Cal.  308; 
Palmer  v.  Aldridge,  16  Barb.  131,  and  cases  cited;  Hall  v.  Warren,  2 
McLean,  332.)     The  defendant  has  no  right  to  inquire  into  the  good 
faith  of  plaintiffs  possession.     (Eberhard  v.  Tuol.  Wat.  Co.  4  Cal.  308.) 
To  maintain  an  action  of  trespass  quare  clausam  fregit,  it  was  formerly 
held  necessary  for  the  plaintiff  to  establish  an  actual  possession  of  the 
locus  in  quo,  but  under  more  modern  decisions  a  constructive  possession 
is  held  sufficient.     (See  Nev.  Co.  and  Sac.  Co.  Canal  Co.  v.  Kidd,  Cal. 
Sup.  Cf.,  Apl.  T.,  1869.)     Actual  possession  is  sufficient  to  maintain 
such  action  against  a  mere  stranger  or  intruder.     That  possession  by 
the  tenant  is  possession  by  the  plaintiff  sufficient  to  support  this  ave 


FOR    TRESPASS.  173 

ment,  see  (Sumner  v.  Tileston,  7  Pick.  198).     It  is  enough  to  show 
possession  at  the  time  of  the  injury.     Vowles  v.  Miller,  3  Taunt.  137. 

21.  Tearing  Down  Gate. — If  the  complaint  in  an  action  for 
an  alleged  trespass  avers  that  defendants  unlawfully  entered  on  plaintiff's 
land,  and  tore  down  a  gate,  the  gist  of  the  action  is  the  entry,  and 
the  removal  of  the  gate  is  a  mere  matter  of  aggravation,  and  if  the 
plaintiff  fail  to  prove  the  gist  he  cannot  recover  for  the  aggravation. 
Pico  v.  Colimas,  32  Cal.  578. 

22.  Tenants    in    Common. — Ordinarily  and  at  common  law 
trespass  will  not  lie  by  one  tenant  in  common  against  his  co-tenant; 
but  when  one  tenant  in  common  destroys  the  subject  of  the  tenacy, 
trespass  will  lie  at  the  suit  of  the  injured  party.     (Co.  Litt.  200,  a,  b; 
Crabbes  Laws  ofR.P.  §  2,318,  b;  \  Ld.  Raym.  737.)     But  one  tenant 
in  common  cannot  maintain  trespass  against  another  for  taking  in  the 
ordinary  course  the  whole  profits  of  the  land.    (Jacobs  v.  Seward,  L.R. 
4  C.  P.  328.)     If  title  is  alleged,  a  general  averment  will  be  sufficient, 
without  setting  out  the  source  of  title.     (Daley  v.  City  of  St.  Paul,  7 
Minn.  390.)     And  the  allegation  of  title  sufficiently  imports  possession 
in  an  action  of  trespass  on  land.     (Cowenhoven  v.  City  of  Brooklyn,  38 
Barb.  9.)     A  judgment  in  trespass  does  not  necessarily  determine  the 
title  to  the  property.     (Brennan  v.  Gaston,  17  Cal.  372.)     The  per- 
sonal action  cannot  be  made  to  test  the  title  of  the  property  as  between 
conflicting  claimants.     Halleck  z>.«Mixer,  16  Cal.  574;  see  Nevada  Co. 
and  Sac.  Canal  Co.  v.  Kidd,  Cal.  Sup.  Ct.,  Apl.  T.,  1869. 

23.  Turning    out    Cattle. — One  who   commits  a  trespass  by 
turning  cattle  out  of  an  inclosure  upon  the  public  lands,  cannot  be  made 
liable  to  the  owner  for  the  loss  of  the  cattle,  if  the  owner  has  been  noti- 
fied to  take  care  of  them.     Story  v.  Robinson,  32  Cal.  205. 

24.  Unlawful. — The  acts  alleged  must  be  essentially  acts  of  trespass, 
forcible  and  unlawful;  but  it  need  not  be  alleged  in  so  many  words  that 
the  entry  was  unlawful.  Van  Deusen  v.  Young,  29  Barb.  9. 

25.  Who  may  Maintain  Action. — Any  person  seized  of  an 
estate  in  remainder  or  reversion  may  bring  an  action  under  it,  not- 
withstanding any  intervening  estate  for  life  or  years.  (Van  Deusen  v. 
Young,  29  Barb.  9.)  The  plaintiff  is  not  entitled  to  recover  damages 
for  a  trespass  quare  clausam  fregit,  alleged  in  his  complaint  to  have 
been  committed  on  his  own  land,  when  in  fact  the  trespass  was  com- 


174  FORMS    OF    COMPLAINTS. 

mitted  on  another  piece  of  land.  (Doherty  v.  Thayer,  31  Cal.  140.) 
An  action  can  be  maintained  by  the  mortgagee  of  real  estate,  to  recover 
damages  for  wrongful  and  fraudulent  injuries  done  to  the  mortgaged 
property,  by  which  the  security  of  the  mortgage  has  been  impared. 
Robinson  v.  Russell,  24  Cal.  467. 

26.    "  With  Force  and  Arms,"  "  Broke  and  Entered."— 

Under  our  system  of  pleading,  the  words,  ' '  with  force  and  arms,  broke 
and  entered,"  do  not  confine  the  proof  to  the  direct  and  immediate 
damages,  as  in  the  old  action  of  trespass,  and  the  facts  being  clearly 
set  out  in  the  complaint,  an  addition  of  these  words  was  surplusage. 
Darst  v.  Rush,  14  Cal.  Si. 


No. 

For  Damages  for  Injuring  Trees. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.    That  the  defendant,  on  the  ....  day  of 


1 8 .  . ,  entered  upon  the  land  of  the  plaintiff,  in  the 
County  of ,  the  same  being  then  in  the  posses- 
sion of  the  plaintiff,  and  did;  without  the  leave  of  the 

plaintiff,  cut  down trees  [designate   number 

and  kind  of  trees\,  of  the  value  of dollars; 

whereby  the  plaintiff  lost  said  trees,  and  the  land  belong- 
ing to  the  plaintiff  was  greatly  damaged  and  lessened  in 

value,  to  the  amount  of dollars;  and  thereby 

the  defendant,  by  the  force  of  Section of  the 

Statute  of ,  forfeited  and  became  liable  to  pay 

to  the  plaintiff  treble  the  amount  of  said  damages. 

»  [Demand  of  Judgment. ~\ 

27.  Action  Can  be  Maintained  as  Soon  as  Timber  is 
Cut. — An  action  may  be  maintained  against  a  trespasser  who  is  cutting 
timber,  as  soon  as  timber  is  cut.  Sampson  v.  Hammond,  4  Cal.  184. 


FOR    TRESPASS. 

28.  Between  Tenants  in  Common. — At  common  law,  when 
one  tenant  in  common  destroys  the  subject  of  the  tenancy,  trespass  will 
lie  at  the  suit  of  the  injured  party.     (  Co.  Lift.  200,  a,  b;    Crabbe's  Law 
of  R.  P.,  §  2,318,  b;    I  Ld.  Raym.  737.)     If  one  tenant  in  common 
destroy  the  thing  in  common — as,  if  he  grub  up  and  destroy  a  hedge, 
or  prevent  his  co-tenant  of  a  fold  from  erecting  hurdles,  trespass  lies. 
{Browne  on  Actions,  414;  Gozv.  201;    8  B.  &  C.  257.)     If  one  tenant 
in  common  enters  upon  his  co-tenant,  and  ousts  him  of  his  premises, 
trespass  quare  dausam  fregit  lies  for  the  injury.     (7  Cow.  229.)    Hence, 
an  action  will  lie  for  injury  to  trees  standing  on  a  line  between  plaintiffs 
and  defendant's  lands,  wheth'er  the  parties  be  regarded  as  tenants  in 
common  of  such  trees  or  not.     Dubois  v.  Beaver,  25  N.Y.  123. 

29.  Demand. — Where  trespassers  cut  wood  on  land  belonging  to 
the  plaintiff,  and  sold  it  to  the  defendants,  who  were  bonafide  purchasers: 
Held,  that  no  previous  demand  was  requisite  to  sustain  an  action  for  the 
•recovery  of  the  wood  or  its  value.     Whitman  G.  and  S.  M.  Co.  v.  Tritle, 
4  Nev.  494. 


No. 

The  Same — For  Cutting  and  Converting  Timber. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.     That  on  the day  of ,   1 8 . . ,  at 

,  the   defendant  forcibly  broke  and   entered 

upon  the  plaintiff's  land,  [the  same  being  then  in  posses- 
sion of  the  plaintiff],  and  there  cut  down  and  carried 
away  the  trees  and  timber  of  the  plaintiff,  and  converted 
and  disposed  of  the  same  to  his  own  use,  contrary  to 
the  statute,  etc. 

[Demand  of  Judgment.} 


30.    Action  Lies. — An  action  for  trespass  lies  for  cutting  and 
carrying  away  timber.     (Cal.  Pr.  Act,  §  250.)     Though  the  land  be  not 


176  FORMS   OF    COMPLAINTS. 

inclosed.      Wells  v.  Howell,  19  Johns.  385;   Tonawanda  R.R.  Co.  v. 
Munger,  5  Den.  255 

31.  Actual   Possession. — In  actions  for  damages  for  injury  to 
real  property,  title  or  actual  possession  at  the  time  of  the  injury  must  be 
shown.     Gardners.  Heart,  i  N.F.  528. 

32.  Broke  Plaintiff's  Close. — It  is  not  necessary  to  state  that 
defendant  broke  the  plaintiffs  close.      Wells  v.  Howell,  19  Johns.  385; 
and  see  Tonawanda  R.R.  Co.  v.  Munger,  5  Denio,  259. 

33.  Damages. — Triple  damages  may  be  assessed  for  cutting  and 
carrying  away  trees,  etc.     (Cal.  Pr.  Act,  §  251.)     But  nothing  in  Sec- 
tion 251  of  the  California  Practice  Act  shall  authorize  the  recovery  of 
more  than  the  just  value  of  the  timber  taken  from  uncultivated  wood- 
land, for  the  repair  of  a  public  highway  or  bridge  upon  the  land,  or 
adjoining  it.     (Cal.  Pr.  Act,  §  252.)     The  damages  should  be  estimated 
by  all  the  circumstances  and  the  purpose  for  which  such  trees  were 
used.     (Chipman  v.  Hubbard,  6  Cal.  162.)     The  measure  of  damages 
is  not  the  value  of  such  trees,  as  for  wood,  but  the  injury  done  to  the 
land  by  destroying  them.     Id. 

34.  Damages — Treble. — To   entitle   to   treble  damages  under 
the  statute,  the  complaint  must  refer  to  the   Act.      (Brown  v.  Bris- 
tol, i  Cow.  176;  as  to  pleading  statutes,  see  Vol.  i.,  pp.  244-7.)     ^n 
actions  for  waste,  when  treble  damages  are  given  by  statute,  the  demand 
for  such  damages  must  be  expressly  inserted  in  the  declaration,  which 
must  either  cite  the  statute,  or  conclude,  to  the  damage  of  the  plaintiff, 
against  the  form  of  the  statute.      Chipman  v.  Em  eric,  3  Cal.  283;  5 
Cal.  239. 

35.  Executor. — Under  our  statute,  an  executor  may  maintain  an 
action  for  trespass  committed  upon  the  real  estate  of  his  testator  in  his 
lifetime.      (Haight  v.  Green,  19  Cal.  113.)       For  averments  of  com- 
plaint by  executors,  where  third  persons  wrongfully  cut  timber,  and 
defendants  afterwards  entered  and  removed  it,  see  (Halleck  v.  Mixer, 
1 6  Cal.  574.)     Any  person  or  his  personal  representatives  shall  have  a 
right  of  action  against  the  executor  or  administrator  of  any  testator  or 
intestate,  who  in  his  lifetime  shall  have  committed  any  trespass  on  the 
real  estate  of  such  person.     Stat.  of  Wash.  Ter.  1863,  p.  246. 

36.  Injunction. — A  complaint  which  sets  out  a  cause  of  action  in 
trespass,  and  concludes  with  a  prayer  for  an  injunction,  is  correct.    (Gates 


FOR   TRESPASS.  177 

v.  Kieff,  7  Cal.  125.)  An  injunction  will  not  be  dissolved,  restraining 
defendants  from  felling  trees,  where  the  question  of  boundary  is  in  dis- 
pute; especially  where  the  defendant's  bond  will  fully  protect  the 
defendant  for  any  delay,  if  it  should  turn  out  that  they  have  the  right. 
Buckelew  v.  Estell,  5  Cal.  108;  see  "Injunction"  Post.  . 

37.  Public  Lands. — Prior  possession  of  public  lands  will  entitle 
the  possessor  to  maintain  an  action  against  a  trespasser.  (Grover  v. 
Hawley,  5  Cal.  485.)  The  right  to  the  use  of  growing  timber  on  min- 
eral lands,  as  between  miners  and  agriculturalists,  is  to  be  governed  by 
the  rule  of  privity  of  appropriation.  Rogers  v.  Soggs,  22  Cal.  444. 

33.  Public  Lands,  Occupants  of. — As  between  occupants  of 
public  lands,  neither  party  can  claim  the  right  to  the  gi  owing  .timber 
thereon.  The  Act  of  Congress  of  March  2,  1831,  prohibits  the  cutting 
or  destruction  of  timber  on  the  public  lands.  (Rogers  v.  Soggs,  22 
Cal.  44. )  The  statute  making  possessory  rights  of  settlers  on  public 
lands  for  agricultural  purposes  yield  to  the  rights  of  miners  has  legal- 
ized what  would  otherwise  be  a  trespass,  and  the  act  cannot  be 
extended  by  implication  to  cases  not  especially  provided  for.  (Wemiar 
v.  Lowery,  n  Cal.  104.)  One  who  claims  public  lands  in  California 
for  raising  fruit-trees  or  crops,  cannot  enjoin  miners  from  digging  up 
the  same  for  mining  purposes,  unless  he  can  show  priority  of  right 
before  the  land  was  located  for  mining  purposes.  Ensmonger  v. 
Mclntire  23  Cal.  593. 

39.  Who  may  Maintain  the  Action. — The  plaintiff  out  of 
possession  cannot  sue  for  the  property  severed  from  the  freehold  when 
the  defendant  is  in  possession  of  the  premises  from  which  the  property 
was  severed,  if  he  holds  them  adversely,  in  good  faith,  under  claim  and 
color  of  title.  (Halleck  v.  Mixer,  16  Cal.  574.)  See  Nevada  and  Sac. 
Canal  Co.  v.  Kidd,  Cal.  Sup.  O.,  Apl.  -T.,  1869;  see  Maine  Boys  Tun- 
nel Co.  v.  Boston  Tunnel  Co.,  Cal.  Sup.  Ct.,  Jan.  T.,  1869. 


12 


178  FORMS    OF    COMPLAINTS. 

No.  425. 

The  Same — For  Treading  down  Grain. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.    That    on  the day  of ,   1 8 .  . ,  at 

,  the  defendant  entered  upon  the  plaintiff's  lot 

\pr  farm],  known  as ,  and  trod  down  the  grain 

then*  growing  thereon,  and  cut  down  certain  trees  [or 
as  the  case  -may  be~\,  contrary  to  the  statute,  etc. 

[Demand  of  Judgment. ,] 


41.  Gist  of  the  Action. — The  allegations  that  the   defendant 
unlawfully  and  willfully  permitted  said  sheep  to  be  herded,  and  did 
herd  the  same  upon  the  lands  of  which  the  plaintiff  was  then  and  still 
is  the  owner,  and  in  a  subsequent  paragraph,   that  defendant  herded 
and  permitted  said  sheep  to  be  herded  in  and  upon  the  above  described 
barley  field,  constitute  the  gist  of  the  action.     Logan  v.  Gedney,  Cal. 
Sup.  Ct.,  Oct.  T.,  1869;  see  Walm  v.  Moss,  12  Cal.  535;  Comerford 
v.  Dupuy,  17  Id.  308;  Richmond  v.  Sac.  Val.  R.R.  Co.,  18  Id.  355;  and 
the  Act  of  1861,  p.  525. 

42.  Herding  Sheep. — The  rule  of  the  common  law  of  England 
that  every  man  was  bound  to  keep  his  beasts  within  his  own  close, 
under  the  penalty  of  answering  in  damages  for  all  injuries  resulting 
from    their    ranging    at  large  never   was   the  law   of  California,  the 
Statutes  of   1850,  pp.  131-219,   being   directly   in  conflict  with   and 
repugnant  to  that  rale;  so  of  the  other  subsequent  acts  on  the  same 
subject.     (See  Waters  v.  Moss,  12  Cal.  535;  Comerford  v.  Dupuy,  17 
Cal.  308;  Richmond   v.  Sac.  Val.  R.R.  Co.,  18  Cal.    355;   Logan  v. 
Gedney,  Cal.  Sup.  Ct.,  Oct.  T.,  1869.)     The  Act  of  1861,  herein  con- 
sidered, neither  in  terms  nor  by  implication  repeats  the  Act  of   1859, 
nor  does  it  prohibit  the  free,  voluntary  ranging  at  large  of  sheep  over 
and  upon  unindosed  public  or  private  land.      The  plain  letter,  manifest 


FOR    TRESPASS.  179 

intent  and  object  of  the  Act,  is  to  prohibit  persons  owning  or  having 
the  charge  of  sheep  from  driving  them  to  and  collecting  them  upon 
uninclosed  lands  of  another  person.  The  acts  prohibited  are  personal, 
for  which  a  party  will  be  held  responsible  to  the  person  injured  in 
simple  damages  to  the  extent  of  the  injury.  Logan  v.  Gedney,  Cal. 
Sup.  Ct.,  Oct.  T.,  1869. 

43.  Lawful  Fences. — A  party  cannot  recover  for  injuries  done 
by  cattle  breaking  into  plaintiffs  close  unless  the  land  entered  be 
inclosed  by  a  fence  of  the  character  described  by  statute,  or  at  least  by 
an  inclosure  equivalent,  in  its  capacity  to  exclude  cattle,  to  the  statutory 
fence.  Comerford  v.  Dupuy,  17  Cal.  308. 


No.  426. 

For  Removal  of  Fence. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.     That  on  the day   of ,   18 .  . ,  at 

the  defendant  forcibly  broke  and  entered  upon 

the  plaintiff's  land,  and  took  down  a  fence  standing  upon 
said  land  and  removed  the  same,  and  also  then  and 
there  erected  another  fence  on  said  land,  and  also  then 
and  there  disturbed  the  plaintiff  in  the  use  and  occupa- 
tion of  said  land,  and  prevented  him  from  enjoying  the 
same  as  he  otherwise  would  have  done. 

\Demand  of ' Judgment. ~\ 


l8o  FORMS    OF     COMPLAINTS. 

No.  427. 

For   Trespass  on  Chattels. 
[TITLE.  1 

The  plaintiff  complains,  and  alleges: 

I.    That   on    the day  of ,   18 .  . ,  at 

,  the  defendant  unlawfully  took  from  the  pos- 
session of  the  plaintiff,  and  carried  away  [describe  the 
goods]  the  property  of  the  plaintiff,  and  still  unlawfully 
detains  the  same  from  the  plaintiff  \pr  where  the  posses- 
sion to  the  property  was  regained,  and  unlawfully 
detained  the  same  from  the  plaintiff]. 

[Demand  of  Judgment.] 


44.    Averment    of   Special    Damage. — That  by  reason  of 
such  unlawful  taking  and  detention  of  said  property,  the  plaintiff  was 

compelled  to  pay,  and  did,  on  the  ....  day  of  ,  1 8 . . ,  at 

,  pay dollars  to  procure  the  return  of  Lthe  same, 

and,  also, dollars  for  storage,  and  sustained  other  injury. 


JVo.  428. 

For  Malicious  Injury  to  Property. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.     That   on   the day  of  .  . . '. ,  18 .  . ,  at 

,    the    defendant,    willfully    and    maliciously 

intending  to  injure  the  plaintiff,  cut,  broke,  mutilated, 
certain   [designate  what],  the  property  of  the  plaintiff, 


FOR    TRESPASS.  l8l 

of  the   value  of '.  .  .  dollars,  and  greatly  injured 

them,  so   that  the  plaintiff  was  compelled  to   expend 
dollars  in  repairing  the  same. 

{Demand  of  Judgment^ 


No.  429. 

For  Entering  and  Injuring  a  House  and  Goods '  Therein. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.      That   on   the    ....  day    of ,    1 8 .  . ,    at 

,the  defendant,  A.  B.,  entered  into  the  plaintiff's 

house,  No ,  ........  Street,  in  the  City  of , 

in  this  State,  and  unlawfully  broke  and  injured  the  doors 
and  walls  thereof  [or  other  injury  to  house\,  and  took 
and  carried  away  \_enumerate  articles^  the  property  of 
the  plaintiff,  and  converted  and  disposed  of  the  same  to 
his  use,  to  plaintiff's  damage dollars. 

{Demand  of  Judgment. \ 


45.  Abusive  Language. — For  the  allegations  in  a  complaint 
against  a  person  who  stops  in  front  of  plaintiffs  house  and  uses  abusive 
language  towards  him,  see  Adams  v.  Rivers,  1 1  Barb.  390. 

46.  Action   Transitory   and   Local. — Where  the  writ  men- 
tions a  trespass  with  force  and  arms  upon  the  storehouse  of  the  plaintiff, 
and  a  seizure  and  destruction  of  goods,  it  covers  a  transitory  as  well  as 
a  local  action.     (McKenna  v.  Fisk,  i   How.  U.S.  211.)    Actions  of 
trespass,  except  those  for  injury  to  real  property,  are  transient  in  their 
character.     Howe  v.  Wilson,  i  Den.  181;  Cage  v.  Jeffries,  Hempst.  409. 

47.  Joinder  of  Parties. — It  is  unnecessary  to  join  as  defendants 


1 82  FORMS    OF     COMPLAINTS. 

in  an  action  for  damages  for  trespass,  all  persons  who  unite  in  commit- 
ting it;  all  or  any  may  be  sued.     Mandlebaum  v.  Russell,  4  Nev,  551. 

48.  Officer  Without  Process. — An  officer  without  process  who 
puts  a  person  in  possession  as  receiver  commits  a  trespass.     Rowe  v. 
Bradley,  12  Cal.  226. 

49.  Trespass  to  the  Person. — Where  a  person  with  a  crowd 
of  others  entered  the  premises  of  plaintiff,  knowing  that  admission  had 
only  been  obtained  by  an  action  of  violence  by  another  person  in  the 
crowd:     Held,  that  he  was  liable  as  a  trespasser.     Chandler  v,  Egan,  28 
How.  Pr.  98. 


COMPLAINTS — SUBDIVISION  SIXTH. 

For  the   Possession  of   Specific   Property. 


CHAPTER   I. 

PERSONAL    PROPERTY. 

No.  430. 

For  Conversion — Common  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That    on    the    ....    day  of   ,  1 8 .  . ,   he 

owned  [one  hundred  barrels  of  crushed  sugar]. 

II.  That  on  that  day,  at ,  the    defendant 

took  the  same. 

Wherefore  the  plaintiff  demands  judgment: 

1.  For   the   possession   of  the  said'  goods,  or  for 

dollars,   in    case   such  possession  cannot  be 

had. 

2 .  For dollars  damages  for  the  detention 

thereof. 


1.     Conversion    Defined. — The  rule  is  that  any  unlawful  inter- 
ferance  with  the  property  of  another,  or  exercise  of  dominion  over  it  by 


184  FORMS    OF    COMPLAINTS. 

which  the  owner  is  damnified,  is  sufficient  to  maintain  the  action.  (10 
Wend.  349;  Latimerp.  Wheeler,  i  Keyes,  468.)  Every  unauthorized 
assumption  of  dominion  over  property  in  hostility  to  the  right  of  the 
true  owners  is  a  conversion.  (Boyce  v.  Brockway,  31  N.Y.  490.)  The 
principle  applied  to  the  case  of  an  infant  obtaining  goods  by  fraudu- 
lent representations  as  to  his  age.  (Eckstein  v.  Wauk,  i  Daly  334;) 
or  to  a  case  of  vendor  retaking  goods  after  delivery.  (Huelet  v.  Reyns, 
i  Abb.  Pr.  (N.S.)  27;)  or  of  a  factor  disobeying  instructions  of  his 
principal;  (Scott  v.  Rogers,  31  N.Y.  679;)  or  of  a  pledgee  of  stock  or 
goods  selling  without  due  notice  to  pledgor;  (Jaroslanski  v.  Sanderson, 
i  Daly,  232;  Brass  v.  Worth,  40  Barb.  648;  Campbell  v.  Parker,  9 
Bosw.  322;  Genet  v.  Rowland,  45  Barb.  560;  30  How.  Pr.  360; 
Clark  v.  Meigs,  10  Bosw.  337;)  or  of  subsequent  sale  of  shares  pur- 
chased under  suspicious  circumstances;  (Anderson v.  Nicholas,  28  N.Y. 
600;)  or  of  note  deposited  by  one  bank  in  another  for  collection,  and 
diverted  to  payment  of  antecedent  debt;  (Potter  v.  Merchants'  Bank, 

28  N.Y.  641 ;)  or  of  money  intended  for  payment  of  notes,  and  seized 
by  the  holder  without  giving  them  up;  (McNaughton  v.  Cameron,  44 
Barb.  406;)  or  of  property  wrongfully  intermixed;  (Morgan  v.  Gregg, 
46  Barb.  183;)  or  of  property  seized  under  void  process;    (Kerr  v. 
Mount,  28  A7".!7.  659;  Hicks  v.  Cleveland,  39  Barb.  573;)  or  of  prop- 
erty to  be  returned  if  not  paid  for  by  a  certain  time;  (Person  v.  Civer, 

29  How.  Pr.   432;)  or  of  property  obtained  by  fradulent  representa- 
tions; (Gary  v.  Hotaling,  i  Hill.  311;  Olmstead  v.  Hotaling,  Id.  317; 
questioned  in  Roberts  v.  Randall,  3  Sandf.   707;)  or  of  property  ob- 
tained in  exchange  for  a  void  note.    Loeschigh,  v.  Blun,  i  Daly,  49. 

2.  Conversion,  -what  Constitutes. — A  sale  of  property  by  in- 
sured after  an  abandonment  is  a  conversion.  (Robinson  v.  United  Ins. 
Co.  i  Johns.  592.)  So,  a  sale  of  property  by  a  manufacturer  after 
delivery  to  the  plaintiff  is  a  conversion.  (Babcock  v.  Gill,  10 
Johns.  287.)  The  *mere  sale  by  one  tenant  in  common  of  the  entire 
chattel,  followed  by  exclusive  claim  and  dominion  in  the  purchaser. 
(2  Kent's  Com.  350;  5  Barn.  &  A.  395;  6  Verm.  442;  21  Wend.  72; 
Wilson  v.  Reed,  3  Johns.  175;  Hyde  v.  Stone,  9  Cow.  230;  Mumford 
v.  McKay,  8  Wend.  442.)  Where  a  commission  merchant  places 
goods  consigned  to  him  for  sale  in  the  hands  of  another  for  sale,  it  is 
a  conversion.  (Moffat  v.  Wood,  Seld.  notes  Nos.  5,  14;  commented  on 
in  Roth  v.  Palmer,  27  Barb.  652.)  Or  if  a  factor  pledge  the  goods  of 
his  principal  for  his  own  debt.  Kennedy  v.  Strong,  14  Johms.  128; 
see  Henry  v.  Marvin,  3  E.  D.  Smith,  71. 


FOR    PERSONAL   PROPERTY.  185 

3.  Conversion  by  Agent.— The  omission   or  refusal  to  pay 
over  moneys  received  by  a  factor,  agent,  or  trustee,  in  the  course  of  his 
agency  or  trust,  will  not  lay  the   foundation  of  an  action   of  trover. 
(Paley  on  Ag.  79;   I    Ves.  jr.  424;   16^!^  250;  Harris  v.  Shultz,  40 
Barb.  315.)     So,  a  misuse  of  the  property  pledged  by  attempting  to 
sell  it  before  time  of  forfeiture,  is  a  conversion.     (Vincent  v.  Conklin, 
i  E.  D.  Smith,  203.)     An  auctioneer  who  in  the  regular  course  of  his 
business  recieves  and  sells  stolen  goods,  and  pays  over  the  proceeds  of 
the  sale  to  the  felon,  without  notice  that  the  goods  were  stolen,  is  not 
liable  to  the  true  owner,  as  for  a  conversion.     (Rogers  v.  Hine,  i   Cal. 
429.)     A  mere  agreement  between  two  or  more  persons  to  convert  the 
property  of  another  without  an  actual  intermeddling  with  it,  does  not 
give  the  owner  a  cause  of  action  against  the  parties  to  the  agreement. 
Herron  v.  Hughes,  25    Cal.  555. 

4.  Conversion,  Allegation  Sufficient. — An  allegation  in  the 
complaint  that  defendant  converted  the  property  to  his  own  use,  is  suf- 
ficient.    It  is  not  necessary  to  state  the  mode  in  which  the  defendant 
appropriated  the  property.     (Decker  v.  Mathews,  12  N.Y.$2i;  324.) 
A  declaration  in  trover  fora  "tool  chest  containing  divers  tools  and  work- 
ing utensils,"  and  "trunk  containing  clothes,"  held  sufficiently  certain, 
(Boll  v.  Patterson,  i  Cranch  C.  Ct.  607. )     A  narration  reciting  all  the 
circumstances  attending  the  seizure  and  conversion  of  a  bag  of  gold  is 
immaterial  and  redundant.     (Green  v.  Palmer,  15  Cal.  411.)     It  is  not 
necessary  to  set  out  the  manner  in  which  the  defendant  converted  the 
property.     (Oteroz>.  Bullard,  3  Cal.  189;  Decker  v.  Matthews,  \2N.Y. 
321,  324;    Hunter  v.   Hudson  River  Iron  and  Machine  Co.,  20  Barb. 
493;   Esmay  v.  Fanning,  9  Id.  176.)     An  allegation  in  the  complaint 
of  the  place  where  the  property  was  taken,  in,  an  action  to  recover  pos- 
session of  personal  property,  is  surplusage.  (Lay  v.  Neville,  25  Cal.  545.) 
That  the  defendant  converted  the  property  to  his  own  use,  is  unneces- 
sary.    Vogel  v.  Badcock,  i  Abb.  Pr.  176. 

5.  Demand. — It  is  a  general  rule,  that  when  the  possession  of 
property  is  originally  acquired  by  a  tort,  no  demand  previous  to  the 
institution  of  the  suit  is   necessary.      (Ledley  v.  Hays,    i    Cal.    160; 
Paige  v.  O'Neal,  12  Cal.  483;  Sargent  v.  Sturm,  23  Cal.  359;    Cum- 
mings  v.  Vorce,  3  Hill,  283;  Pierce  v.  Van  Dyke,  6  Id.  613;  Gary  v. 
Hotailing,  i  Id.  311;  Stillman  v.  Squire,   i  Den.  327;  Zachrisson  v. 
Ahman,  2  Sandf.  68;  Pringle  v.  Phillips,  5  Id.   157.)     In  an  action 
against  the  sheriff,  for  property  tortiously  taken   by  him   under   an 


1 86  FORMS    OF    COMPLAINTS. 

attachment  or  execution  against  some  other  person,  it  is  not  necessary 
to  allege  and  prove  a  demand  for  its  delivery  prior  to  the  commence- 
ment of  the  action.  (Ledley  v .  Hays,  iCal.  160.)  And  all  cases  since  then 
to  the  contrary  have  been  overruled  in  (Bouhvare  v.  Craddock,  30  Cal. 
190;  see,  also,  Sargent  v.  Sturm,  23  Cal.  359;  Wellman  v.  Peck,  Cal. 
Sup.  Ct.,  Oct.  T.,  1869);  as  the  only  purpose  of  proving  a  demand  in 
trover  and  replevin  is  to  show  defendant's  possession  wrongful.  (Whit- 
man G.  and  S.  M.  Co.  v.  Tritle,  4  Nev.  404.)  Thus,  if  a  sheriff,  by 
virtue  of  an  execution,  seizes  the  property  of  a  person  other  than  the 
judgment-debtor,  whether  by  mistake  or  design,  it  is  not  necessary  for 
the  owner  of  the  property  thus  seized  to  make  a  demand  on  the  sheriff 
before  commencing  suit.  Boulware  v.  Craddock,  30  Cal.  190;  Moore 
v.  Murdock,  26  Cal.  524;  see,  also,  Woodworth  v.  Knowlton,  22 
Id.  164. 

6.  Demand  and   Refusal. — A  demand  and  refusal  are  never 
necessary  as  evidence  of  conversion,  unless  the  other  acts  of  the  defend- 
ant are  not  sufficient  to  prove  it.     Nor  are  they  evidence  when  it  was 
not  in  the  defendant's  power  to  deliver  the  property  when  demanded. 
(Gilmore  v.  Newton,  9  Allen,  171.)     The  demand  and  refusal  are  only 
evidence  of  the  conversion.     (State  v.  Patten,  49  Maine,  383;  Hunt 
v.  Holton,  13  Pick.  216;  Pierce  v.  Benjamin,  14  Pick.  356;  Thurston 
v.  Blanchard,  22  Pick.  18;    see  i  Pick.  397.)     To  constitute  demand 
and  a  refusal  as  evidence  of  a  conversion,  it  is  sufficient  that  the  goods 
are  in  the  possession  of  the  agent  of  the  defendant,  and  the  latter  on 
demand  refuses  to  permit  his  agent  to  deliver  them.    (Chambers  v.  Lewis, 
28  N.Y.  454;  1 6  Abb.  Pr.  433.)    A  refusal  to  deliver,  retracted  before 
suit  brought,  ceases  to  be   a   conversion.  Ward  v.  Kelsey,   15   Abb. 
Pr-   53- 

7.  Demand,  when  Necessary. — Where  goods  were  wrong- 
fully taken  by  one  person,  and  came  rightfully  into  the  possession  of 
another,  a  demand  upon  the   latter   should   be   averred.     (Barret  v. 
Warren,  3  Hill,  348;  Pierce  v.  Van  Dyke,  6  Id.  613;  Hunter  v.  Hud- 
son Iron  and  Machine  Co.  20  Barb.  493;  Ely  v.  Ehle,  3  N.Y.   506; 
Tallman  v.  Turck,  26  Barb.  167.)    So  in  case  of  a  bailee  in  good  faith, 
and  where  the  goods  are  subsequently  wrongfully  detained.     (Purves  v . 
Moltz,  5  Rob.  653.)   As  to  cases  in  which  previous  demand  of  goods  from 
holder  will  be  essential  to  render  him  liable  for  their  conversion,  see 
(Chambers  v.  Lewis,  16  Abb.  Pr.  433;  S.C.,  28  N.Y.  454;   Hicks  v. 
Cleveland,  39  Barb.   573.)     When  a  demand  is  necessary,  it  is  sum- 


FOR  PERSONAL  PROPERTY.  187 

cient  to  make  it  upon  the  one  who  is  in  the  actual  possession,  and  able 
to  comply  with  it.     Woodworth  v.  Knowlton,  22  Cal.  164. 

8.  Election  of  Remedy. — Where  personal  property  is  tortiously 
taken,  the  party  aggrieved  may  waive  the  tort  and  sue  in  assumpsit  for 
the  value  of  the  property.     (Fratt  v.  Clark,  12  Cal.  89.)     The  election 
between  the  right  to  sue  in  tort  or  in   contract  in  respect  to  the  same 
transaction,  is  conclusive,  and  when  made  must  be  abided  by  on  trial, 
and  in  its  after  consequences.     (Bank  of  Beloit  v.  Beal,  34  N.Y.  473; 
Ransom  v.  Wetmore,  39  Barb.  104;  Wright  v.  Ritterman,  i  Abb.  Pr. 
(N.S.)  428;  People  v.  Kelly,  Id.    432;   Grocers'  Nat.  Bk.  v.  Clark,  31 
How.  Pr.  1 15.)     And  the   complaint   must   be   framed   with  precise 
reference  to  the  specific  remedy  invoked.     (Smith   v.  Knapp,  30  N.Y. 
581.)     An  allegation  of  contract  by  way  of  inducement  will  not  vary 
the  nature  of  an  action  sounding  in  tort.     (Person   v.  Civer,  28  How. 
Pr.  139.)     As  to  the  effect  of  an  election  to  waive  tort  and  sue   in 
assumpsit,  see  (Mayor  of  N.Y.  v.  Parker  Vein  S.S.  Co.,  8  Bosw.  300.) 
And  if  no  demand  is  necessary  in  an  action  to  recover  certain  specific 
personal  property,  no  demand  is  necessary   in  an  action   brought  to 
recover  its  value  only.     Whitman   G.  and   S.  M.  Co.,   v.   Sutle,   4 
Nev.  494. 

9.  Gist  of  the  Action. — The  conversion  is  the  gist  of  the 
action,  and  without  conversion  neither  possession  of  property,  negli- 
gence, nor  misfortune,  will  enable  the  action  to  be  maintained.    (Rogers 
v.  Huie,  2  Cal.  571.)     Defendant  must  have   converted  the   property 
to  his  own  use,  and  if  not,  then  any  other  act  to  amount  to  a  conversion 
must  be  done  with  a  wrongful  intent,  either. expressed  or  implied.     Id. 

10.  Intent. — A  wrongful  intent  is  not  an  essential  element  of  the 
conversion.     It  is  enough  that  the   rightful  owner  has  been  deprived  of 
his  property  by  some  unauthorized  act  of  another  assuming  dominion 
or  control  over  it.     i   Wils.  328;  6  Wend.  603;  n  Id.  80;  20  Id.  267; 
22  Id.  285;  4  Den.  323;  5  Id.  240;  10  Wend.   349;  10  Johns.  175;  23 
Wend.  462;  9  Barb.  242;  Boyce  v.  Brockway,  31  N.Y.  490. 

11.  Joinder  of  Parties. — All  the  parties  in  interest  should  join 
in  an  action  of  trover,  and  a  failure  to  join  may  be  pleaded  in   abate- 
ment.    (Whitney  v.  Stark,  8  Cal.  514.)     In  an  action  by  the   parties 
whose  property  has  been  wrongfully  taken  under  legal  process,  all  who 
join  or  participate  in  the  trespass  are  joint  trespassers.     (Lewis  v.  Johns, 
34  Cal.  629.)     In  case  of  joint  bailees,  demand  and  refusal  by  one  is 


1 88  FORMS   OF    COMPLAINTS. 

not  of  itself,  as  in  case  of  partners,  a  conversion.  Mitchell  v.  Williams, 
4  Hill,  13.)  But  the  refusal  by  a  partner  is  a  conversion,  i  Camp. 
410;  15  Wend.  474;  9  Moore.  41;  21  Sing.  23;  Holbrook  v.  Wright, 
24  Wend.  169. 

12.  Joint  Ownership. — A  complaint  which  avers  that  the  defend- 
ant took  and  carried  away  "certain   goods,  chattels  and  effects,  of  and 
belonging  to  the   said   plaintiffs,"  does  not   necessarily   aver   a  joint 
ownership  of  the  goods  in  the  plaintiffs.     Pelberg   v.    Gorham,    23 
Cal.  349. 

13.  Jurisdiction. — Actions  to  recover  compensation  for  injuries 
done  to  personal  property  may  be  maintained  wherever  jurisdiction  of 
the  parties  can  be  obtained.     26  How.  Pr.  257;  i  Chitt.  Pi.  243;  Com. 
Dig.    Trover,  7;   9  Johns.  67,  69;    2  Hill,  262;    Smith   v.  Butler,    i 
Daly,  508. 

14.  Liability  for  Conversion. — A  wrongful  taker  of  goods  is 
liable  for  their  whole  value,  although  the  owner  had  insured  them  and 
has  been  paid  in  full.     Perrott  v.  Shearer,  17  Mich.  48. 

15.  Measure  of  Recovery. — In  an  action  by  the  pledgee  of 
goods  against  a  stranger  for  the  conversion  of  pledged  property,  the 
rule  is  that  plaintiff  is  entitled  to  recover  its  full  value;  but  if  against 
the  owner,  or  one  acting  in  privity  with  him,  then  only  for  plaintiffs 
special  interest  therein  as  pledgee.     (Treadwell  v.  Davis,  34  Cal.  601.) 
So,  also,  as  against  sheriff  for  conversion  of  goods  pledged,  he  will  be 
held  liable  only  for  plaintiff's  special  interest  in  the  goods.     (Id.}     In 
Nevada,  if  personal  property  is  unlawfully  seized  and  converted,  the 
measure  of  damages  is  the  value  of  the  property  at  the  time  of  the 
conversion,  and  interest   from  that   time  to   judgment.     (Carlyou  v. 
Lauman,  4  Nev.  156. 

16.  Offer    to    Restore. — And  if,   before  suit  is  brought,   the 
defendant  unconditionally  offers  to  restore  the  property,  the  object  is 
attained,  and  the  suit  is  wholly  unnecessary.     Savage  v.  Perkins,  1 1 
How.  Pr.  17. 

17.  Ownership. — Ownership  by  the  plaintiff  must  be  shown,  or 
a  special  property  with  the  immediate  right  of  possession.     (Clark  v. 
Skinner,  20  Johns.  465;  McCurdy  v.  Brown,  i   Duer,  101;  Dodworth 
v.  Jones,  4  Id.  201.)     If  the  plaintiff  claims  as  owner,  an  allegation 
that  he  is  owner  is  sufficient,  without  stating  other  facts  to  show  his 


FOR    PERSONAL    PROPERTY.  189 

title.  (Depew  v.  Leal,  2  Abb.  Pr.  131;  Burns  v.  Robbins,  i  Code  R. 
92;  Roberts  v.  Willard,  Id.  100;  Heine  v.  Anderson,  2  Duer,  318.) 
But  an  equitable  title  without  an  immediate  right  to  possession  is  not 
sufficient  to  form  ground  for  this  action.  (Whitcomb  v.  Hungerford, 
44  Barb.  \  77.)  It  is  unnecessary  to  allege  ownership  of  the  goods,  when 
the  complaint  alleges  a  forcible  and  wrongful  taking.  (Kissam  v.  Rob- 
erts, 6  Bosw.  154,  and  cases  there  cited;  Bliss  v.  Cottle,  32  Barb.  322; 
Heine  v.  Anderson,  3  Duer,  318).  Or  a  vested  legal  interest.  (Pope  v. 
Tucker,  23  Geo.  484;  see  Hunt  v.  Pratt,  7  R.I.  286.)  Though  either 
allegation  of  ownership  or  possession  is  sufficient.  ^Kuhland  v. 
Sedgwick,  17  Cal.  123.)  But  an  averment  that  plaintiff  is  entitled  to 
the  immediate  possession  is  insufficient.  (Pattison  v.  Adams,  7  Hill, 
126;  Bond  v.  Mitchell,  3  Barb.  304;  Pattison  v.  Adams,  Hill  &  D. 
Sup.  426.)  Or  that  the  goods  were  his  property,  by  order  of  several 
attachments  duly  issued,  etc.  (Vandenburgh  v.  Van  Valkinburgh,  8 
Barb.  217.)  Although  the  defendant,  before  suit,  has  parted  with 
the  possession  of  the  property,  the  action  may  be  sustained.  Brockway 
v.  Burnap,  16  Barb.  309;  reversing  S.C.,  12  Id.  347;  Savage  v.  Perkins, 
ii  How.  Pr.  17;  Drake  v.  Wakefield,  n  Id.  106;  Ward  v.  Woodburn, 
27  Barb.  346;  Van  Neste  v.  Conover,  20  Id.  547;  Nichols  v,  Michael, 
23  N.Y.  264.  * 

18.  Parties  Plaintiff— Bailee. — A  bailee  may  sue  for  conver- 
sion.    Green  v.  Clark,  2  Kern.  343;  Alt  v.  Weidenberg,  6  Bosw.  176. 

19.  Consignee. — A  consignee  is  in  law  presumed  to  be  the  owner. 
(Fitzhugh  v.  Wiman,  9  N.Y.  559.)     So  of  a  factor.     Goram  v.  Carey, 
I  Abb.  Pr.  285. 

20.  Factor. — So  may  a  factor  in  charge  of  goods,  and  responsible 
for  their  value.     Gorum  v,  Carey,  i  Abb.  Prf  285. 

21.  Finder. — The  finder  of  goods  may  maintain  an  action  against 
a  wrong-doer  who  subsequently  converts  them.     Mathews  v.  Harsell, 
i  E.  D.  Smith,  393. 

22.  Husband. — A  husband  in  joint  possession  with  his  wife  of 
chattels  purchased  by  her,  may  maintain  trover  against  her  mortgagee, 
on  the  ground  that  her  contracts  were  void,  and  he  himself  was  liable 
for  the  price.     Switzer  v.  Valentine,  10  How.  Pr.  109. 

23.  Partner. — A   partner  cannot  sustain  an   action   against   his 


FORMS   OF    COMPLAINTS. 

co-partner  for  the  delivery  of  personal  property  belonging  to  the  partner- 
ship.    Buckley  v.  Carlisle,  2  CaL  420. 

24.  Receiver. — A  receiver  of  partnership  effects  cannot  maintain 
an  action  against  a  person  who  had  converted  the  assets  of  the  firm 
before  his  appointment;  he  must  sue  in  the  name  of  the  firm  in  whom 
was  the  legal  right  of  action.     Meager  v.  Wallace,  44  Penn.  State  R. 

25.  Sheriff — A  sheriff  may  hold  a  party  liable  for  conversion  who 
wrongfully  removes  goods  levied  upon.     (Barker  v.  Bininger,  4  Kern. 
270.)     But  such  action  is  only  maintainable  by  him,  and  not  by  his 
deputy.     Terwilliger  v.  Wheeler,  35  Barb.  620. 

26.  Tenants  in  Common. — One  tenant  in  common  of  chattels 
cannot  sue  another  for  the  appropriation  of  his  share,  when  capable  of 
severance.      (Forbes  v.  Shattuck,  22  Barb.   568;    Tripp  v.  Riley,   15 
Barb.  333;  Tinney  v.  Stebbins,  28  Barb.  290.)     But  otherwise  when 
the  conversion  is  in  fact  a  destruction  of  the  property.     (Benedict  v. 
Howard,  31  Barb.  569.)     If  the  parties  were  tenants  in  common,  and 
the  defendant  sold  the  chattels  held  in  common,  and  appropriated  the 
proceeds  to  his  own  use,  the  remedy  of  the  plaintiff  is  in  trover,  or  by 
an  action  for  money  had  and  received ;  and  an  action  for  goods,  wares, 
and  merchandise  sold  and  delivered  will  not  entitle  him  to  a  judgment. 
Williams  v.  Chad  bourne,  6  Cal.  559. 

27.  Parties  Defendant — Agent. — Where  the  action  is  brought 
against  ah  agent,  it  is  necessary  to  allege,  not  only  that   defendant 
received  the  money  as  agent,  but  that  he  converted  it  in  the  course  of 
his  employment  as  such.     (Porter  v.  Hermann,  8  Cal.  619;  see,  also. 
Sharp  v.  Whipple,  i  Bosw.  557.)     Trover  will  not  lie  against  an  agent, 
where  the  agent,  though  wanting  in  good  faith,  has  acted  within  the 
scope  of  his  powers.     {tfT.R.  260;  10  Johns.  172;  Peake's  Cas.  49;  4 
Esp.  156;  2  Salk.  655;  4  Wend.  613;  2  Bos.  &  P.  438;   i   Vent.  223; 
4  Camp.  183;  McMorris  v.  Simpson,  2 1   Wend.  610.)     A  mere  omission 
of  duty  is  not  enough.     Where  goods  are  detained  by  an  agent,  by 
direction  and  command  of  his  principal,  trover  lies  against  the  principal. 
(Shotwell  v.  Few,  7  Johns.  302.)     So,  the  principal  is  liable  where  he 
receives  the  benefit  of  the  act  of  the  agent,     i  Hill,  318;  7  Bing.  543; 
Cobb  v.  Dows,  10  N.Y.  335. 

28.  Attorney. — As  to  the  attorney's  liability,  see  Ford  v.  Wil- 
liams, 13  N.y.  (3  Kern.)  577. 


FOR    PERSONAL    PROPERTY.  19! 

29.  Carrier. — In  a  count  in  trover  against  a  carrier,  it  is  unneces- 
sary to  allege  his  duty  as  such,  if  his  business  is  set  forth,  together  with 
his  negligence,  and  the  loss  resulting  therefrom.     Wright  v.  McKee, 
37  Vt.  161. 

30.  Factor. — Where  the  defendant  contracted  with  a  factor,  who 
was  in  his  debt,  for  certain  goods,  but  before  he  took  them  away  was 
informed  that  a  portion  of  them  belonged  to  another,  his  taking  such 
portion  was  an  unlawful  assumption  of  ownership,  and  a  conversion  of 
the  property.     Scriber  v.  Masten,   1 1  Cal.  330. 

31.  Infant. — An  infant  may  be  made  liable  in  trover,  although  the 
goods  converted  be  in  his  possession  by  virtue  of  a  previous  contract. 
The  conversion  is  still  in  its  nature  a  tort;  it  is  not  an  act  of  omission 
but  of  commission,'  and  is  within  that  class  of  offenses  for  which  infancy 
cannot  afford  protection.     Vasse  v.  Smith,  6  Cranch,  226. 

32.  Pledgee. — Where,  without  calling  on  the  pledger  to  redeem, 
the  pledgee  sold  the  pledge,  the  same  being  a  chose  in  action,  this  was 
a  conversion  of  the  pledge,  and  the  pledgee  thereby  became  liable,  in 
an  action  for  the  conversion,  for  the  value  of  the  pledge  at  the  time  of 
the  conversion  in  excess  of  the  demand  secured  by  the  pledgee,  with 
legal  interest  thereon  from  the  time  of  the  conversion.    Gay  v.  Moss,  34 
Cal.  125. 

33.  Principal    and   Agent. — The  principal  is  liable  for  a  con- 
version of  goods  by  his  agent.     (Chambers  v.  Lewis,  28  N.Y.  454.) 
But  mere  possession  by  an  innocent  agent  does  not  of  itself  constitute  a 
conversion.     (Hunt  v.  Kane,  40  Barb.  638.)     The  agent  actually  dis- 
posing of  the  goods  of  another  is  liable  to  the  real  owner,  though  igno- 
rant of  the  fraud  conducted  by  his  principal.     Dudley  v.  Hawley,  40 
Barb.  397. 

34.  Trespasser. — An  action  of  trover  may  be  maintained  against 
a  trespasser  who  is  cutting  timber,  as  soon  as  the  timber  is  cut.     Samp- 
son v.  Hammond,  4  Cal.  184. 

35.  Warehouseman. — Where  warehousemen  deliver  wheat  to 
third  persons  who  bought  from  the  broker  for  his  own  debt,  on  the 
ground  that  they  held  the  storage  receipt  of  defendants  to  one  S.,  who 
had  loaned  money  to  E.  &  H.  on  the  wheat  as  collateral,  and  had  en- 
dorsed the   receipt:  "Deliver  to  bearer  or  E.  &  H.,"  the  defendants 


FORMS    OF    COMPLAINTS. 

knowing  at  the  time  of  the  delivery  that  E.  &  H.  claimed  the  wheat  as 
their  property,  they  are  liable  to  E.  &  H.  for  a  conversion.  Hanna  v. 
Flint,  14  Cal.  73. 

36.  Possession,  and  Right  of  Possession. — The  action  can- 
not be  maintained  without  a  property  in  the  plaintiff,  either  general  or 
special.    (Hotchkiss  v.  McVickar,    12  John.  403;    Sheldon  v.  Soper, 
14  Johns,  352;   Taylor  v.  Howell,  4  Blackf.  317;    Barton  v.  Dunn- 
ing, 6   Id.    209;    Grady  v.   Newby,  Id.   442.)      The   plaintiff  must 
either  have  the  possession   or  the   immediate  right  to  the   posses- 
sion  of    the   property,   to   entitle   him    to   recover.       (Middlesworth 
v.  Sedgwick,  10  Cal.  392;  Redman  z> .-Gould,  7  Blackf.  361;  Danleyz>. 
Rector,  5  Eng.  211;  Kempz».  Thompson,  17  Ala.  9;  Purdy  v.  McCul- 
lough,  3  Barr.  466;  Stephenson  z>.  Little,  10  Mich.  433.)     The  right  to 
possession  must  be  present  and  immediate.  (2  Greenl.  on  Ev.  552,  §  561 ; 
Decker  v.  Matthews,  12  N.Y.  313,  and  see  321;  Redman  v.  Hen- 
dricks,  i  Sandf.  32;  Wheeler  v.  Train,  3  Pick.  255;  Sharp  v.  Whitten- 
hall,  3  Hill.  576.)    Any  right  to  actual  possession  atthetime  of  takingis 
sufficient  to  form  ground  of  action.      (Trost  v.  Mott,  34    N.Y.  253; 
Bowen  v.  Fenner,  40  Barb.  383.)     The  action  does  not  lie  in  favor  of 
a  lessor  of  chattels  during  the  lessee's  right  of  possession.  (2  Selw.  N.P. 
1,385.)     Possession  under  a  general  or  even  a  gratuitous  bailment  is 
sufficient  evidence  of  title  to  entitle  the  bailee  to  maintain  an  action  of 
trover  against  a  stranger  who  intermeddles  with  the  property.     (6  Mod. 
334;  2   Taunt.  268;  Saund.  PI.  &  Ev.  1,151;  Bowen  v.  Fenner,   40 
Barb.  383.)     Where  M.  made  a  bill  of  sale  of  goods  then  in  the  pos- 
session of  G.  as  keeper  for  the  sheriff,  as  collateral  security  for  a  debt 
due  G.,  and  G.  subsequently  gave  back  the  bill  of  sale  to  M.  without 
any  liquidation  of  the  debt  or  change  of  the  possession  of  the  property, 
and  the  property  was  afterwards  sold  by  the  defendant  as  sheriff,  M. 
bringing  an  action  of  trover  against  the  defendant  to  recover  the  same: 
Held,  that  M.  had  no  title  to  the  property  which  he  could  recover  in  such 
an  action,  as  the  mere  handing  back  the  bill  of  sale  of  M.  did  not  re- 
vert the  title  in  him.     Middlesworth  v.  Sedgwick,  10  Cal.  392. 

37.  Possession    Averred. — An  averment  in  the  complaint  that 
plaintiff  was  in  possession,  imports   that   his  possession   was   lawful. 
Sheldon  v.  Hoy,  n  How.  Pr.  n. 

38.  Possession    by    Defendant. — In  an  action  to  recover  the 
possession  of  personal  property,  it  is  not  necessary  to  show  that  defend- 


FOR  PERSONAL  PROPERTY.  193 

ant  had  possession  in  fact  of  the  goods  at  the  time  the  action  was 
brought.  If  the  defendant  had  been  previously  in  possession,  and  was 
present  at  the  time  of  a  demand  upon  another  person  and  refusal  by 
him  at  the  piaffe  where  the  goods  were,  he  cannot  set  up  a  defense  of 
the  action  that  he  had  parted  with  the  possession  to  such  person.  23 
N.F.  364;  9  Mees.  &  Wels.  19;  5  Carr  &  P.  346. 

39.  Property    and    Possession. — It  has  sometimes  been  held 
that  trover  is  founded  exclusively  on  the  right  of  property,  (Hastier  v. 
Skull,  i  Tayl.  152.)     The  right  of  property  and  the  right  of  possession 
must  concur,  or  the  action  will  not  lie.     The  special  property  must 
arise    from   possession.      Hotchkiss    v.   McVickar,    12    Johns.    403; 
McCurdy  v.  Brown,  i  Duer,    101. 

40.  Purchase    from  Agents. — If  one  is  entrusted  with  goods 
by  the  owner,  with  power  to  sell  the  same  at  retail  for  the  owner,  as  his 
agent  or  clerk,  and  if  he  then  sells  the  goods  in  payment  of  his  private 
debt,  to  one  who  has  full  knowledge  of  the  owner's  title  and  the  agent's 
relation  to  the  goods,  the  purchase  made  with  this  knowledge  amounts  to 
a  conversion.     Herron  v.  Hughes,  25   Cat.  555. 

41.  Value. — An  averment  of  the  value  of  the  property  is  not 
material.      (Bac.  Abr.,  tit.   Tresp.,  I.  2,  and  Trov.,  F.  i;    Connoss  v. 
Meir,  2  E.  D.  Smith,  314.)     The  value  of  the  goods  is  not  of  the  sub- 
stance of  the  issue,  and  need  not  be  alleged.     (Richardson  v.  Hall,  2 1 
Md.  399.)     Nor  is  time  a  material  allegation.     (Id.)     The  wrongful 
doing  of  the  act  is  sufficient,  without  specifying  the  mode  or  manner  in 
which  it  was  done.     (Id.)     In  designating  the  goods,  a  description 
which  will  identify  them  is  sufficient.     Root  v.  Woodruff,  6  Hill.  418. 

42.  Who  Liable. — It  is  a  matter  of  no  consequence  that  some 
other  party  took  the  property  first,  or  that  defendants  purchased  from  a 
party  who  had  no  authority  to  sell;  it  is  still  a  conversion.     Somebody 
else  may  be  also  liable,  but  this  does  not  relieve  the  defendants  from 
their  liability.     Briggs  v.  Waugenheim,  Cal.  Sup.  Ct.,  Oct  T.,  1869. 

43.  Wrongful  and  Unlawful. — It  is  not  necessary  to  designate 
the  act  as  "wrongful"  or  "unlawful"  where  the  facts  show  an  illegal 
taking  of  the  goods.     Buck  v.  Colbath,  7  Minn.  310;  Adams  v.  Cor- 
reston,  Id.  456;  see  Vol.  i.,  p.  132. 


194  FORMS    OF    COMPLAINTS. 

No.  431. 

ii.    The  Same — Another  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges :  • 

I.  That  on  the day  of ,    1 8 .  . ,   at 

,  he  owned  certain  goods,  described   in  the 

schedule  hereto  annexed,  marked  "  Schedule  A"   \pr 
the  following  described  goods,  describing  thent\. 

II.  That  on  the  said  day,  at ,  the  defendant 

converted  the  same  to  his  own  use. 

[Demand  of  Judgment.] 
[Annex  Schedule,  Marked  "A."~\ 

44.  Schedule  Annexed. — Where  the  articles  are  numerous,  they 
may  conveniently  be  enumerated  in  a  schedule  or  exhibit  annexed  to 
the  complaint,  and  referred  to  as  such.  It  is  not  necessary  to  state 
their  value  severally.  See  Root  v.  Woodruff,  6  Hill,  418. 

J\To.  432. 

iii.    By  Seller,  against  Fraudulent  Buyer  of  Goods,  for    Conversion. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on    the  ....  day   of ,    1 8 .  . ,   at 

,  the  defendant  represented   to  the   plaintiff, 

that  one  A.  B.  was  solvent  and   in  good  credit,  and 
worth dollars  over  all  his  liabilities. 

II.  That  the  plaintiff  was  thereby  induced  to  sell  to 

the  said  A.  B.  [dry  goods],  of  the  value  of 

dollars. 


FOR    PERSONAL    PROPERTY.  1 95 

III.  That  the  said  representations  were  false,   and 
known  by  the  defendant  to  be  so,  and  were  made  by 
him  with  intent  to  deceive  and  defraud  the  plaintiff. 

IV.  That  the  defendant,  having  so  obtained  from  the 
plaintiff  the  possession  of  said  goods,   converted  and 
disposed  of  them  to  his  own  use. 

[Demand  of  Judgment, .] 


45.  Allegations  against  Fraudulent  Buyer  and  his 
Transferee. — That  the  said  [buyer]  afterwards  transferred  said  goods 
to  the  defendant  A.  B.,  who  wrongfully  detains  them  from  the  plaintiff. 

That  on  the  ....  day  of ,   1 8 .  . ,  at ,  the   plaintift 

demanded  of  said  A.  B.  that  he  deliver  the  same  to  him,  but  the  said 
A.  B.  refused  to  do  so,  to  his  damage dollars. 

46.  Fraud  of  Purchaser. — The  plaintiff  may  declare  generally, 
claiming  the  property  as  his,  and  charging  that  the  defendants  have 
become  possessed  of  and  wrongfully  detain  the  same,  and  give  the 
special  facts  in  evidence  on  the  trial  to  establish  the  fraud.  Bliss  v. 
Cottle,  32  Barb.  322;  Hunter  v.  Hudson  River  Iron  and  Machine  Co., 
20  Barb.  493. 

No.  433. 

iv.    For  Goods    Wrongfully  taken  from  Possession  of  Plaintiff's 

Assignor. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  :  . 

I.  That  at  the  time  hereafter  mentioned,  one  A.  B. 
was  lawfully  possessed  of  [describe  the  property\. 

II.  That   on    the  ....  day  of ,   18. .,  the 

defendant  wrongfully  took  said  goods  from  the  posses- 
sion of  said  A.  B.,  and  ever  since   has  detained   the 
same. 


196  FORMS    OF    COMPLAINTS. 

III.   That  on  the  ....  day  of ,  18 .  . ,  said 

A.  B.  asssigned  and  set  over  to  the  plaintiff  said  goods, 
and  also    his   claim   to  damages  for  said   taking  and 

detention. 

[Demand  of  Judgment. ,] 


No.  434. 

v.    For  Goods   Wrongfully  taken  from  Possession  of  Bailee. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned  the  plaintiff 
was,  and  still  is  the  owner  of  [describe  the  goods],  which 
goods  were  then  in  the  possession  of  A.  B.,  with  whom 
the   plaintiff  had    left  the  same  for   safe   keeping  [or 
otherwise], 

II.  That  on  the day  of ,  18 .  .,  the 

defendant  wrongfully  took  said  goods  from  the  posses- 
sion of  said  A.  B.,  and  still  detains  the  same  from  the 
plaintiff  without  his  consent. 

III.  That  before  this  action,  to  wit,  on  the  ....  day 

of ,  1 8 .  . ,  the  time  which  the  said  A.  B.  was 

safely  to  keep  said  goods  had  expired,  and  thereupon 
the  plaintiff  became    entitled   to   the   immediate   and 
exclusive  possession  of  said  goods. 

{Demand  of  Judgment^ 


45.  Bailee  Holding  Lien. — The  right  of  possession  of  a  bailee 
holding  a  lien  does  not  preclude  the  owner  from  maintaining  this 
action  against  a  third  person  wrongfully  taking  the  goods  from  the  bailee. 
Either  the  owner  or  bailee  may  bring  the  action.  See  Fitzhugh  v. 
Wiman,  9  N.F.  559;  Neff  v.  Thompson,  8  Barb.  213. 


FOR    PERSONAL    PROPERTY.  1  97 


JVo. 

vi.    For  Conversion  of  a  Promissory  Note. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That   on  the  .....  day  of  .........  ,   1  8  .  .  ,  at 

........  ,  the  plaintiff  made  his  promissory  note,   of 

which  the  following  is  a  copy;  which  note  was  made 
and  delivered  by  the  plaintiff  to  A.  B.,  without  consid- 
eration, and  for  his  accommodation,  and  with  the  special 
purpose  and  agreement  between  the  plaintiff  and  said 
A.  B.,  that  [state  intended  appropriation  of  the  note  as 
the  fact  was]. 

II.  That  said  note  was  thereafter  offered   by  said 
A.  B.   to  the  B^nk  of  ........  ,  which  refused    to  dis- 

count  the   same,  and   returned   it  to  the  said   A.  B., 
whereupon  the  plaintiff  became  entitled  to  the  posses- 
sion thereof  \pr  state  facts  as  they  occurred~\. 

III.  That  thereafter,  but  before  the  maturity  of  the 
note,  the  defendant  C.  D.,  without  the  knowledge   or 
consent  of  the  plaintiff  or  of  A.  B.,  unlawfully  took  said 
note  from  the  possession  of  A.  B.,  and  delivered  it  to 
the  defendant  E.  F.  ;  and  that  the  defendants  thereupon 
converted  and  disposed  of  it  to  their  own  use,  whereby 
the  plaintiff  was  compelled  to  pay  it. 

\Demand  of  Judgment.  ~\ 

» 

46.  Bank  Notes.  —  As  to  the  manner  in  which  bank  notes  may 
be  described  in  complaint,  see  Dows  v.  Bignall,  Hill  &•  D.  Supp.  407. 

47.  Value  of  Note  —  If  the  plaintiff  does  not  know  the   exact 
amount  of  the  note  converted,  he  may  state  it  as  "of  great  value,  to 


198  FORMS    OF    COMPLAINTS. 

wit,  the  value  of,"  etc.,  designating  a  sum.  (Bissel  v.  Drake,  19  Johns. 
66.)  The  amount  of  the  note  is  prima  facie  the  measure  of  damages. 
Ingalls  v.  Lord,  i  Cow.  240;  Decker  v.  Mathews,  5  Sand/.  439. 


No.  436. 

vii.    By  Assignee  after  Conversion. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  before  and  until  the  time  hereinafter  men- 
tioned, one  A.  B.  was  lawfully  possessed  of  [designate 
the  goods],  or  was  entitled  to  the  immediate  possession  of 
[describe*the goods~\,  the  property  of  the  said  A.  B. 

II.  That  on  the day  of ,  18 . . ,  the 

defendant  converted  the  same  to  his  own  use. 

III.  That  on  the  ....  day  of ,  18.  .,  said 

A.  B.  assigned  to   the    plaintiff  his  claim  against  the 
defendant  for  damages  for  said  conversion. 

[Demand  of  Judgment.^ 


48.  Assignment   by  Married  Women. — An  assignment  by 
married  women  of  certain  specified  goods  and  chattels,  "as  well  as  all 
claims  and  demands  for  any  portion  of  them,"  carries  the  right  of 
action  for  the  previous  wrongful  taking  of  any  of  the  assigned  goods. 
Sherman^.  Elder,  24  N.Y.  381. 

49.  Assignment  for  Benefit  of  Creditors. — A  general  assign- 
ment of  all  property  for  the  benefit  of  creditors  was  held  to  pass  a 
right  of  action  for  the  conversion  of  promissory  notes.     Whittaker  v. 
Merrill,  30  Barb.  389;  and  see  Westcott  v.  Keelei.  4  Bosw.  564. 

50.  Consideration   of  Assignment. — It  is  not   necessary  to 
allege   the    consideration   of    the    assignment.      (Vogel   v.  Badcock, 
i  Abb.  Pr.  176.)     A  general  averment  of  ownership  is  sufficient  in  an 
action  by  an  assignee  before  the  conversion.     It  is  not  necessary  to  set 


FOR  PERSONAL  PROPERTY.  199 

forth  his  title  in  the  complaint.  Under  such  an  averment,  a  bill  of  sale 
from  the  former  owner  may  be  given  in  evidence.  Heine  v.  Ander- 
son, 2  Duer,  318. 

51.  Conversion   bsfore  Assignment. — Where  the  complaint 
charges  a  conversion  of  personal  property  after  its  assignment  to  the 
plaintiff,  he  cannot  recover  for  a  conversion  before   its  assignment. 
The  case  is  not  a  variance,  but  the  causes  of  action  are  distinct.     Whit- 
taker  v.  Merrill,  30  Barb.  389. 

52.  Complaint    by   Assignees. — The  complaint  averred  that 
defendant  wrongfully  took  and  detained  from   one   Johnson   certain 
county   warrants    owned    by   the   latter;    that   subsequently    Johnson 
assigned  to  plaintiff  his  right  in  the  warrants,  and  the  moneys  which 
might  be  made  by  the  same;  and  that,  after  this  assignment,  plaintiff 
demanded  the  warrants  from  defendant,  who  refused  to  deliver  them. 
Held,  that  this  complaint  stated  a  sufficient  cause  of  action;  that  as 
assignee  of  Johnson,  plaintiff  was  entitled  to  recover  the  warrants  or 
their  value,  with  damages  for  their  detention  accruing  after  the  assign- 
ment.    Lazard  v.  Wheeler,  22  Cat.  139. 

53.  Demand  by  Assignee. — Such  a  claim  will  pass  by  a  gen- 
eral assignment  in  trust  for  the  payment  of  creditors.     And   a   new 
demand  by  the  assignee  is  unnecessary.     McKee  v.  Judd,  12  N. Y.  622. 

54.  Power  of  Owner  after  Conversion. — After  the  conver- 
sion of  a  chattel  or  an  injury  to  real  or  personal  property,  the  owner  may 
either  sell  the  chattel  itself  or  assign  his  right  of  action  for  the  conver- 
sion or  injury.     Hall  v.  Robinson,  2  Com.  293;  Cass  v.  New  Haven 
R.R.  Co.,   i   E.  D.   Smith,    522;    Robinson  v.  Weeks,    i    Code  Rep. 
311;  McGinn  v.  Worden,   3  E.  D.  Smith,  355;  Wilson  v.  Cook,  Id. 
252;  Howell  v.  Kroose,  4  Id.  357;  2  Abb.  Pr.  167;  North  v.  Turner, 
9  Serg.W.  R.  244;  Hoyt  v.  Thompson,  i  Seld.  347;  McKee  v.  Judd,  2 
Kernan,  622;  see  Hicks  v.  Cleveland,  39  Barb.  537;  Waldron  z>.  Wil- 
lard,  17  N.y.  436. 

55.  Right  of  Action  Assignable. — A  right  of  action  of  this 
nature   is  assignable,  and   the   assignee  may  sue   in  his  own  name. 
Gradwohl  v.  Harris,  29  Cal.   150;  Cal.  Pr.  Act,  §  4. 


2OO  FORMS    OF    COMPLAINTS. 

JVo.  437. 

viii.  Against  One  in  Possession  Innocently^ 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  \_Allege  ownership]. 

II.  That  on  the day  of ,  18.  .,  at 

,  one  A.  B.  wrongfully  took  said  goods  and 

chattels  from  the  possession  of  the  plaintiff,  and  unjustly 
detained  the  same. 

III.  That  thereafter  the  same  came  into  the  posses- 
sion of  the  defendant,  who  refused  to  deliver  them  to 
the  plaintiff,  although,  before  this  action,  to  wit,  on  the 

....  day  of ,  1 8 .  . ,  the  plaintiff  duly  demanded 

of  the  defendant  possession  of  the  same. 

IV.  That  the    defendant  still   unlawfully  withholds 
and  detains  said  goods  and  chattels  from  the  posses- 
sion of  the  plaintiff. 

[Demand  of  Judgment.\ 


56.  Assignee. — Where  the  defendant  is  assignee  for  the  ben- 
efit of  creditors  from  wrong  doer,  it  is  necessary  to  allege  that  defendant 
has  refused  to  deliver  it  up  upon  demand.  (Fuller  v.  Lewis,  3  Abb.  Pr. 
383;  see,  also,  Gurney  v.  Kenny,  2  E.  D.  Smith,  132.)  But  if  an 
actual  wrongful  conversion  of  the  property  is  proved,  proof  of  a  demand 
is  unnecessary.  Davison  v.  Donadi,  2  E.D.  Smith,  121;  Pringle  v. 
Phillips.  5  Sanf.  157. 


FOR  PERSONAL  PROPERTY.  2OI 

JVo.  438. 

ix.     By  Administrator,  after  Conversion. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  before  and  until  the  time  hereinafter  men- 
tioned, one  A.  B.  was  lawfully  possessed  of,   [or  was 
entitled     to    the    immediate     possession     of — describe 
goods\,  the  property  of  the  said  A.  B. 

II.  That  on  ....  day  of ,  18 .  . ,  the  same 

came  into  the  possession  of  the  defendant,  who,  from 
that  day  until  the  commencement  of  this  action   has 
detained  the  same. 

III.  That  before  the  commencement  of  this  action, 

to  wit:   on   the   ....  day   of ,  18.  .,  the  said 

A.  B.  [or  the  plaintiff]  demanded  the   same   from   the 
defendant,  but  he  refused  to  deliver  them. 

IV.  That  thereafter  and  before  this  action,  said  A.B. 

died  intestate,  and  bn  the  ....  day  of ,  1 8  .  . , 

letters  of  administration  upon  the  estate  of  said  A.  B., 
deceased,  were  duly  issued  and  granted  to  the  plaintiff 

by  the  Probate  Court  of  the  County  of ,  of  this 

State,  appointing  the  plaintiff  administrator  of  all   the 
goods,  chattels,  and  credits  which  were  of  said  deceased, 
and  that  the  plaintiff  thereupon  duly  qualified  as  such 
administrator,  and  entered  upon  the  discharge   of  the 
duties  of  his  said  office. 

[Demand  of  Judgment^ 


57.     Action  Lies. — The  administrator  may  maintain  an  action 
for  wrongful  conversion  of  the  personal  estate  of  the  deceased,  before 


2O2  FORMS    OF    COMPLAINTS. 

the  issuance  of  letters.  (Jahns  v.  Nolting,  29  Col.  507.)  Such  an 
action  may  be  maintained  without  the  aid  of  Section  115  of  the 
Probate  Act,  and  such  section  does  not  give  a  new  right  of  action,  but 
merely  increases  the  damages.  Id.;  consult  Vol.  i.,  p.  311,  Form  No. 
57,.Note  35. 

53.  Allegation  of  Embezzlement. — When  the  complaint  in 
such  an  action  alleges  that  the  defendant  embezzled,  alienated,  and  con- 
verted to  his  own  use  the  personal  estate  of  the  deceased,  and  prays 
for  double  damages,  the  plaintiff  is  entitled  to  recover  double  damages 
if  the  proof  sustains  the  allegation.  Jahns  v.  Nolting,  29  Cal.  507. 

59.  Demand  of  Property. — In  suit  by  an  administrator,    for 
conversion  of  the  property  of  the  estate  under  the  1 1 6th  Section  of  the 
Statute  to  regulate  the  settlement  of  estates,  the  proof  as  to  the  right  or 
title  or  possession  of  plaintiff,  and  the  taking  or  interference  by  defend- 
ant being  conflicting,  it  is  error  to  instruct  the  jury  that  a  mere  demand 
on  the  defendant,  and  the  refusal  by  him   to  surrender  the  property, 
W'll  charge  him  with  a  conversion.    Beckman  v.  McKay,  14  Cal.  250. 

60.  Essential  Averments. — A  complaint  in  replevin,   by  an 
executor,  should  show  the  death  of  the  testator,  his  leaving  a  will,  the 
appointment  therein  of  the  plaintiff  as  executor,  the  probate  of  the  will, 
the  issuance  of  letters  testamentary  to  the  plaintiff,  and  his  qualification 
and  entry  upon  the  discharge  of  his  duties  as  executor.     Halleck  v. 
Mixer,  16  Cal.  575. 

61.  Ownership. — A  complaint  in  replevin,  alleging  that  F.  was 
seized  and  possessed  of  certain  premises  at  the  time  of  his  death;  that 
the  plaintiffs  were  appointed  the  executors  of  his  last  will  and  testament, 
and  ever  since  their  appointment  have  been  in  the  possession  of  the 
premises;    that   certain   persons,  whose   names   are   not   designated, 
entered  upon  the  same  without  authority,  and  cut  down  timber  growing 
thereon,  to  the  amount  of  about  three  hundred  cords;  that  the  defend- 
ant afterwards  also  entered  upon  the  premises  without  authority,  and 
removed  the  wood  thus  cut,  and  still  detains  it  from  the  plaintiffs;  that 
they  have  demanded  the  possesion  of  the  same  from  him,  and  that  he 
refuses  to  deliver  it  to  them,  to  their  damage  of  $1,000,  the  alleged 
value  of  the  wood,  sufficiently  shows  plaintiffs'  ownership  of  the  wood. 
Halleck  v.  Mixer,  16  Cal.  574. 


FOR  PERSONAL  PROPERTY.  203 

JVo.  439. 

x.    For  Conversion  of  a  Bond. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on  the  ....  day  of ,  1 8 . . ,  at , 

one  A.  B.  was  the  owner  of  a  bond,  a  copy  of  which  is 
annexed  as  a  part  of  this  complaint,  and  marked   "Ex- 
hibit   A,"    and  by   his    agent,    at  the    request  of  the 
defendant,    deposited    it   with    the    defendant   for   the 
purpose    of  \_here   briefly  state  purpose  for  which   it 
was  deposited^ 

II.  That  after  a  reasonable   time  for  [state  purpose~\ 

and  on  the  ....  day  of ,  1 8  . . ,  at , 

said  A.  B.  demanded  from  the  defendant  the  said  bond, 
or  the  value  thereof;  but  the  defendant  refused  either 
to  return  it  or  to  pay  its  value  to  the  said  A.  B. 

III.  That    on    the  ....  day    of ,   18.  .,    at 

,  the  said  A.  B.  'duly  assigned  to  the  plaintiff 

the  said  bond,  together  with  all  his  right  of  action 
against  the  defendant  and  all  other  persons,  to  recover 
its  value,  or  its  possession,  or  damages. 

[Demand  of  Judgment.  \ 


62.  Bond  or  Written  Instrument. — In  an  action  for  the  con- 
version-of  a  bond  or  written  instrument,  the  plaintiff  should  name  the 
parties  to  it,  and  his  declaration  should  show  that  it  was  an  instrument 
in  writing,  although  he  cannot  be  held  to  an  exact  description. 
Pierson  v.  Townsend,  2  Hill,  550. 


2O4  FORMS    OF    COMPLAINTS. 


No.  440. 

Claim  and  Delivery. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on   the day  of ,   1 8 .  . ,  at 

,  the  plaintiff  was  the  owner  [or  otherwise]  of 

the    following   goods  and    chattels   [of  the    value  of 
dollars],  to  wit:   \describe goods ^\ 

II.  That  the  defendant,  on  the  ....  day  of , 

1 8 .  . ,  at  the  City  and  County  of ,  without  the 

plaintiff's  consent,  and  wrongfully,  took  said  goods  and 
chattels  from  the  possession  of  the  plaintiff. 

III.  That  before  the  commencement  of  this  action, 
to  wit,  on  the  ....  day  of  ......  .  . ,  1 8 .  . ,  the  plaintiff 

demanded   of   the  defendant  possession  of  said  goods 
and  chattels.  « 

IV.  That  said  defendant  still  unlawfully  withholds 
and  detains  said  goods  and  chattels  from  the  possession 

of  the  plaintiff,  to  his  damage  in  the  sum  of 

dollars. 

Wherefore   the  plaintiff  demands  judgment   against 
the  defendant. 

1.  For  the  recovery  of  the  possesson  of  said  goods 

and  chattels,  or  for  the  sum  of  ..." dollars,   the 

value  thereof  [in  case  a  delivery  cannot  be  had~\. 

2.  For dollars  damages,  and  for  costs  of 

suit. 


FOR  PERSONAL  PROPERTY.  2 05 

63.  Action  Defined. — The  "action  for  "  claim  and  delivery  of 
personal  property,"  under  the  practice  of  California,  is  at  least  com- 
mensurate with  the  action  of  detinue  at  common  law.     (McLaughlin  v. 
Piatti,  27  Cal.  464.)     It  was  formerly  the  action  of  replevin.      (Pick 
v.    Baker,    31    Duer,    19;    DeMott    v.    Hagerman,    8     Cow.     220.) 
The    primary    object    of   the    suit    is    the    recovery    of    the    thing 
itself.       The     value     is     received     only    in     the    alternative,     that 
the  thing  is  not  returned.     (Hunt  v.  Robinson,    n    Cal.   277.)     And 
herein  lies  the  difference  between  this  action  and  the  action  correspond- 
ing with  the  former  action  of  trover,  where  an  offer  before  suit  is  not 
equivalent  to  a  tender.     (Savage  v.  Perkins,  u  How.  Pr.  17.)     The 
remedy  afforded  by  the  former  action  of  replevin  is  not  taken  away. 
Nichols  v.  Michael,  23  N.Y.  264;  Savage  v.  Perkins,  n  flow.  Pr.  17; 
and   see   Vogel   v.  Badcock,  i  Abb.  Pr.    176;   McCurdy   v.  Brown,  i 
Duer,  101. 

64.  Adverse    Possession  of  Land. — The    plaintiff  out    of 
possession  cannot  sue  for  property  severed  from  the  freehold,  when  the 
defendant  is  in  possession  of  the  premises,  from  which  the   property 
was  severed,   holding   them  adversely  in  good  faith  under  claim  and 
color   of  title.     (Halleck   v.  Mixer,  16  Cal.  579;   affirmed  in  Page  v. 
Fowler,  Cal.  Sup.  Ct.,  Apl.  T.,  1869.)     But  by  the  action  of  claim  and 
delivery,  the  true  owner  of  land  may  maintain  replevin  to  recover  wood 
cut  on  the  land  by  one  in  possession  of  the  same  without  color  of  title. 
(Kimball   v.    Lohmas,  31  Cal.    156;   Halleck   v.  Mixer,  16  Cal.  579; 
Page  v.  Fowler,  Cal.  Sup.  Ci.,  Apl.  T.,  1869.)   The  common  law  rule,  in 
relation  to  the  right  of  the  owner  of  land  to  recover  possession  of  cord 
wood  cut  on  the  land   by   one  in   possession,  without  color   of  title, 
commented   on,  (Page   v.    Fowler    28    Cal.    605.)     Replevin   is  the 
proper  remedy  to  recover  a  package  of  gold  sealed  up  in  a  leather  bag. 
Skidmore  v.  Taylor,  29  Cal.  619. 

65.  Allegations  Essential. — In  an  action  against  a  Sheriff  for 
the  value  of  a   piano  seized   by   him   on   an   execution  against  the 
plaintiff,  who  claimed  the  same   as  exempt  from  execution,  an  allega- 
tion in  the  complaint  that  the  plaintiff  was   a  pianist,  and  that   he  had 
taught  music  within  three  months  prior  to  the  time  when  his  piano  was 
seized,  is  not  sufficient  to  show  that  teaching  music  was  his  business  at 
the  time  of  such  seizure.     Tanners.  Billings,  18  Wis.  163. 

66.  Bailee. — Replevin  does  not  lie  for  goods  deposited  with  the 


2O6  FORMS    OF    COMPLAINTS. 

plaintiff  by  a   stranger  who  has   no  interest   in   them.     Harrison   v. 
Mclntosh,  i  Johns.  380. 

67.  Bill  in  Equity. — Where  the  recovery  of  the  property  is  the 
primary  object  of  the  suit,  as   in  some   cases  where  damages   will  not 
compensate  plaintiff,  he  should  frame  his  bill  in   equity,  specifying  the 
reasons  therefor,   and  then  a  decree  can  be  made  to   compel  specific 
delivery.     Nickerson  v.  Chatterton,  7  Cal.  570. 

68.  Cepit — Detinet. — The   distinction   must  still   be   preserved 
between   the   wrongful   taking  and   the    wrongful   detention.    If  the 
original  taking  was  lawful  the  action  must  be  in  the  detinet.     (Randall 
•v.  Cook,   17    Wend.    53.)     And  one  who,  having  possession  originally 
lawful,  refuses  to  deliver,  is  not  liable  in  the  cepit.     (Hyman   v.  Cook, 
How.  App.  Cas.  419.)     So,  the  grantee  in  a  sheriff's  deed  cannot  have 
replevin   in   the   cepit   for  timber  cut  by   debtor   during  the    period 
allowed   for   redemption.     (Rich  v.  Baker  3  Den.  79.)     Replevin  in 
the  ceipl  will    Only    lie    where    trespass    will    lie.      (i    Wend.     109; 
19    Id.    431;     4    Barn.    <5f   A.    614;     Vin.    Tresp.    (M.)    PL     n; 
Bac.   Abr.    Tresp.    (E.}   2;    Bro.    Abr.    Tresp.    PL   48;    Barrett    v. 
Warren,  3  Hill.  348;   Rich   v.  Baker,  3  Den.  79.)    And  only  where  a 
present  right  of  possession  is  shown.  (12  Wend.  30;  3  Hill.  576;  3  Pick. 
255;  Redman  v.  Hendricks,  i  Sand/.  32.)     Replevin  in  the  detinet,  as 
well  as   in  the  cepit,  will  lie  upon  a  tortious  taking,  for   plaintiff  may 
waive  the  force.       (Cummings   v.    Vorce,    3    Hill.  282;     Pierce    v. 
Vandyke,  6  Id.   613;   Zachrisson  v.   Ahman,  2  Sandf.    68.)     And  in 
such  case,  a  demand  before  suit  is   not  necessary.     Id.;  Stillman   v. 
Squire,  i  Den.  327. 

69.  Character  or  Capacity. — It  is  not  necessary  to  designate  a 
public  officer  defendant  by  his  official  character.     He  is  to  be  rendered 
liable   in   his   individual   capacity.     (Stillman  v.  Squire,  i  Den.  327.) 
The  deputy  may  be  joined  with  principal.     Waterbury  v.  Westervelt,  9 
N.Y.  598;  King  v.  Orser,  4  Duer,  431. 

70.  Claim  to  Property. — It  is  the  privilege  of  the  plaintiff  to 
claim  the  delivery  of  the  property  at  any  time  before  the  filing  of  the 
answer,  but  it  is  not  compulsory  upon  him  to  do  so.     (Wellman  v. 
English,  Cal.  Sup.  Ct.,  Oct.  T.,  1869.)     And  whether  he  claims  it  or  not 
before  the  answer  filed,  does  not  affect  the  question  of  ultimate  relief. 
Id. 


FOR  PERSONAL  PROPERTY.  2O/ 

71.  Custody  of  the  Law. — In  general,  goods  in  the  custody  of 
the  law  cannot  be  replevied.     (6  Johns.  9;  14  Johns.  87;  15  Id.  402; 
19  Id.  32;    5  Mass.  283;    Willes  672;    2  Sir.  1,184;    i  Chitt.  PI.  160; 
i  Sch.  &  Lef.  320;   3  Bl.  Com.  148;  i  Wend.  109;    Hall  #.  Tuttle,  2 
Jf£«</.  475.)     Even  if  the  execution  has  been  paid  and  satisfied.    (Gard- 
ner v.  Campbell,  15  Johns.  401.)     If  the  officer  upon   an  execution 
against  A.  seizes  the  goods  of  B.,  the  latter  may  bring  replevin.  (Thomp- 
son v.  Button,  14  Johns.  84;  see  15  Id.  401;  Judd  v.  Fox,  9  Cow.  259.) 
Or,  if  the  judgment  was  void  for  want  of  jurisdiction,  replevin  lies. 
Mills  v.  Martin,  19  Johns.  7. 

72.  Damages. — In  actions  for  taking  and  detaining  personal 
property,  no  circumstances  of  aggravation  being  shown,  the  measure  of 
damage  is  the  fixed  value  of  the  property,  with  interest  up  to  the  time  of 
the  rendition  of  the  verdict.     (Dorseyz*.  Manlove,  14  Cal.  553;  Hamer 
v.  Hathaway,  Cal.  Sup.  Ct.,  Jul.  T.,  1866.)     So  in  an  action  against  a 
sheriff  for  wrongful  seizure  and  sale  of  property;   (Pelberg  v.  Gorham, 
23  Cal.  349;  ii  Cal.  22;)  to  be  ascertained  at  the  place  where  it  is  de- 
tained when  the  action  is  commenced.      (Hisler  v.  Carr.  34  Cal.  641.) 
But  where  the  value  of  the  goods  is  fluctuating,  the  plaintiff  may  recover 
the  highest  market  value  at  the  time  of  the  conversion,  or  at  any  time 
afterwards;  (Douglass  v.  Kraft,  9  Cal.  563;  Dorsey  v.  Manlove,  14  Cal. 
555;    Hamer  v.  Hathaway,  33  Cal.   117;)    the   market  value   to  be 
ascertained  at  the  place  of  the  conversion.     (Id.)     Interest  is  allowed 
as  a  matter  of  right  from  the  time  when  value  is  estimated.     (Id.)     The 
defendants  are  not  entitled  to  claim  compensation  for  money  or  services 
laid  out  or  expended  upon  the  plaintiffs  property,  in  the  absence  of  a 
request  on  his  part.     No  request  will  be  presumed  when  the  property 
of  one  person  is  taken  under  legal  process.     (Hisler  v.  Carr,  34  Cal. 
641.)     The  damages  when  the  property  has  been  delivered  is  the  legal 
interest  on  the  value  thereof  during  the  detention.     Nickerson  v.  Chat- 
terton,  7  Cal.  568;  Douglass  v.  Craft,  9  Id.  562. 

73.  Demand. — In  this  form  of  action  a  demand  must  be  proved. 
(Powers  v.  Bassford,  19  How.  Pr.  309;  Fuller  v.  Lewis,  3  Abb.  Pr.  384; 
see  Gurney  v.  Kenny,  2  E.  D.  Smith,  132;    Barrett  v.  Warren,  3  Hill, 
351;  Storm  v.  Livingston,  6  Johns.  44.)     It  is  only  when  the  original 
possession  is  lawful,  and  the  action  relies  upon  the  unlawful  detention, 
that  a  demand  is  required.     (Paige  v.  O'Neal,  12  Cal.  483.)     Where 
the  taking  is  by  an  officer  upon  proper  legal  authority,  a  demand  is 
necessary  in  order  to  make  him  liable  in  damages.     Daumiel  v.  Gor- 
ham, 6  Cal.  43;  Taylor  v.  Scannell,  12  Id.  73. 


2O8  FORMS    OF     COMPLAINTS. 

74.     Execution-Creditor  Joined. — If  the  levy  was  made  by^ 
the  direction  of  the  execution-creditor,  he  also  may  be  joined.     Allen 
v.  Crary,  10  Wend.  349;    Acker  v.  Campbell,  23  Id.  372;     Marsh  v. 
Backus,  1 6  Barb.  483. 

75.  Fixtures,  when  Personal  Property. — By  the  wrongful 
severance  from  the  premises,  the  fixtures  become  personal -property,  for 
the  recovery  of  which  an  action  of  replevin  will  lie  by  the  purchaser 
after  he  obtains  the  sheriff's  deed.     Sands  v.  Pfeiffer,  10  Cal.  258. 

76.  Liabilities  of  Third   Persons. — Where   a   person   is   in 
possession  of  goods  belonging  to  another,  which  he  is  bound  to  deliver 
upon  demand,  if  he,  without  authority  from  the  owner,  parts  with  that 
possession,  to  one  who  refuses  to  deliver  them,  he  is  responsible  in 
detinue  equally  with  the  party  refusing.    He  contributes  to  the  detention. 
(23  N.Y.  264;    Dunham  v.  Troy  Union  R.R.  Co.,  3  Keyes,  543.)      A 
third  person,  who  acquires  possession  of  the  goods  from  a  wrong  doer,  is 
liable  when  notice  has  been  given.     (Olmstead  v.  Hotailing,  i  Hill,  317, 
and  cases  there  cited;  and  see  Ely  v.  Ehle,  3  N.Y.  506.)     And  against 
such,  no  demand  is  necessary.     Pringle  v.  Phillips,  5  Sandf.  157. 

77.  Property  Taken  for  Tax. — In  New  York,  property  taken 
from  the  owner  for  a  tax  assessed  on  him  under  a  statute  of  the  United 
States,  cannot  be   replevied  by  him.     (2  Rev.  Sfat.  of  N.F.  522,-  §  4; 
O'Reilly  v.  Good,  42  Barb.  521;  18  Abb.  Pr.  106.)     Yet  the  rightful 
possessor  of  goods  unlawfully  seized  under  a  warrant  against  another 
for  non-payment  of  taxes,  may  prosecute  an  action  to  recover  possession 
of  such  goods,  and  take  proceedings  of  claim  and  delivery  of  such 
goods.     (Stockwell  v.  Veitch,  15  Abb.  Pr.  412.)     In  such  cases  the 
Court  cannot  inquire  into  the  regularity  of  the  proceedings  upon  which 
the  warrant  issued.     People  v.  Albany,  7  Wend.  485. 

78.  Relief. — If  there  are  several  defendants,  the  Court  may  adjudge 
a  return  of  the  property  in  favor  of  such  of  the  defendants  as  appear  to 
be  entitled  to  a  return,  and  refuse  it  as  to  such  of  them  as  are  not. 
Woodburn  v.  Chamberlain,  17  Barb.  446. 

79.  Relief,  Alternative. — The  judgment  must  be  in  the  altern- 
ative, and  not  in  any  case  absolutely,  for  the  value  of  the  property. 
Fitzhugh  v.  Wiman,  9  N.Y.  559;  D wight  v.  Enos,  Id.  470. 

80.  Restitution  and  Damages. — In  an  action  to  recover  pos- 


FOR    PERSONAL    PROPERTY.  2CX) 

session  of  a  mare,  and  damages  for  her  detention,  damages  resulting 
from  the  mare's  losing  flesh,  and  the  breeding  season,  during  such 
detention,  should  be  specially  alleged.  Stevenson  v.  Smith,  28  Cal. 
102. 

81.  Right  of  Possession. — Replevin  lies  for  goods  and  chattels 
unlawfully  taken  or  detained,  and  may  be  brought  whenever  one  person 
claims  personal  property  in  the  possession  of  another,  and  this  whether 
the  claimant  has  ever  had  possesion  or  not,  and  whether  his  propert-y 
in  the  goods  be  absolute  or  qualified,  provided  he  has  the  right  to  the 
possession.     (Lazard  v.  Wheeler,  22   Cal.   139;  Pangburn  v.  Patridge, 
7  Johns.  140,  and  cases  there  cited;  Cresson  v.  Stout,  17  Id.}     A  bill 
of  sale,  of  a  given  number  of  cattle — part  of  a  herd  running  on  the 
seller's  ranch — giving  the  purchaser  the  right  to  select  the  number  sold, 
and  take  the  same  immediately,  gives  to  the  purchaser  the  right,  after 
demand  and  refusal,  to  recover  possession  of  the  entire  herd  in  an 
action  at  law,  and  then  select  the  number  purchased,  and  return  the 
residue   to   the   seller.      (McLaughlin   v.  Piatti,  27   Cal.  464.)     The 
plaintiff,  by  virtue  of  his  prior  actual  possession  of  the  land,  will  be  en- 
titled to  recover,  unless  the  defendant  prove  they  entered  in  good  faith, 
with  the  intention  to  preempt  the  land,  on  which  hay  was  cut,  and  had 
actual  possession  of  it  at  the  time.     Page  v.  Fowler,  Cal.  Sup.  Ct.,  Apl. 
71,  1869. 

82.  When  Replevin  Lies. — That  replevin  lies  by  the  owner 
of  chattels  against  one  who  has  merely  directed  the  sheriff  to  levy  on 
them,  (10  Wend.  349;  Knapp  v.  Smith,   27  N.I'.   277.)     Replevin  lies 
•wherever  trespass  would   lie.     (Pangburn  v.  Partridge,  7  Johns.    140; 
Marshall  v.  Davis,   i    Wend.   109;  Chapman  v.  Andrews,   3   Id.   240; 
Rogers  v.  Arnold,  12  Id.  30.)     This  does  not  mean  that  the  remedies 
are  always  concurrent,  but  that  wherever  trespass  would  lie,  and  the 
defendant  was  in  possession  of  the  goods,  replevin  would  lie.     (Roberts 
7>.  Randall,  3  Sandf.  707;)  further  qualified  as  meaning  that  it  would  lie 
where  trespass  might  be  brought.     (Thompson  v.  Button,  14  Johns.  84; 
Clark  v.  Skinner,  20  Id.  465.)     Replevin  for  hay  cut  on  public  lands 
cannot  be  maintained  by  a  prior  possessor  against  one  who  was  in 
adverse  possession,  claiming  a  pre-emption  right,  entered  when  he  cut 
the  hay.     (Page  v.  Fowler,  28  Cal.  606;  affirmed  in  Page  v.  Fowler, 
Oct.  T.  1869.)     The  action  for  replevin  would  not  lie  for  emblements 
cut  and  taken  by  a  person  who  was  at  the  time  of  the  taking  in  posses- 
sion of  the  land.     (Rich  v.  Baker,  3  Den.  79;  De  Mott  v.  Hagerman, 


2IO  FORMS    OF     COMPLAINTS. 

8  Con.  220.)  A  safe  in  the  possession  of  McC.,  belonging  to  W.,  F.  &.* 
Co.,  for  whom,  as  also  for  plaintiff,  he  was  agent,  contained  $6,000  in 
coin.  Of  this  sum  four  hundred  dollars  belonged  to  W.,  F.  &  Co.,  the 
balance  to  plaintiff.  Defendant,  as  sheriff,  under  a  writ  against  McC., 
seized  $1,800  of  the  money  in  the  safe  as  his  property,  and  put  it  in  a 
bag.  Plaintiff  then  claimed  the  money  as  his,  McC.  being  present  and 
not  objecting.  Held,  that  this  amounted  to  a  segregation  or  the  $1,800 
from  the  mass  of  coin  in  the  safe,  so  as  to  sustain  replevin  by  plaintiff. 
Griffith  v.  Bogardus,  14  Cal.  410. 

83.  When   Action  -will  not  Lie. — If  an  officer  by  his  mis- 
conduct induces  a  sale  of  property  for  less  than  it  \vould  otherwise  have 
brought,  the  remedy  must  be  by  an  action  for  damages  for  the  loss  result- 
ing from  his  acts,  and  not  an  action  to  recover  the  property  or  its  value. 
Foster  v.  Coronel,  Oct.  7',  1867. 

84.  Wrongful  Detention. — This  action  is  based  upon  a  wrong- 
ful detention  of  the  property;  and  such  wrongful  detention  must  exist 
at  the  commencement  of  the  suit.     (Savage  v.  Perkins,  1 1  How.  Pr. 
17.)     But  facts  must  be  shown,  as  the  averments  in  a  complaint  of 
"wrongful  and  unlawful"  may  be  stricken  out  as  surplusage.     Halleck 
v.  Mixer,  16  Cal.  574. 

85.  Wrongful  Taking. — Alleging  that  the  defendant  took  the 
plaintiff's  property  sufficiently  imports  a  wrongful  taking.     Childs  v. 
Hart,  7  Barb.   370;  compare  Reynolds  v.  Lounsbury,  6   Hill,   534; 
see  Note  40. 


CHAPTER  II. 

FOR    REAL   PROPERTY. 

No.  441- 

i.   Ejectment,  Alleging  Title  in  Fee  Simple. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....  day  of 18 .  . ,  he  was 

seized  in  fee  of  that  certain  tract  of  land  situated  in  the 
County  of ,  State  of ,  described  as  fol- 
lows:   [description  of  proper ty.~] 

II.  That  while  the  plaintiff  was  so  seized,  the  defend- 
ant afterwards,  on  the day  of ,  1 8 .  . , 

entered  into  possession  of  the  demanded  premises,  and 
now  unlawfully  withholds  the  possession  thereof  from  the 
plaintiff,  to  his  damage  in  the  sum  of dollars. 

III.  That  the  value  of  the  rents,  issues,  and  profits  of 

said  premises  from  the  said  ....  day  of ,  1 8  .  . , 

and  while  the  plaintiff   had    been  excluded  therefrom 
by  the    defendant,    is    dollars. 

Wherefore  the  plaintiff  prays  judgment  against  the 
defendant: 

i    For  the  recovery  of  the  possession  of  the  demnded 
premises. 

« 

2.    For  the  sum  of dollars,  the  value  of  the 

said  rents,  issues,  and  profits,  and  costs  of  suit. 


212  FORMS    OF     COMPLAINTS. 

1.  Color  of  Title. — Color  of  title  is  that  which  in  appearance  is  a 
title,  but  which  in  reality  is  no  title.     It  is  that  which  the  law  will  con- 
sider prima  facie  a  good  title,  but  which  by  reason  of  some  defect,  not 
appearing  on  its  face,  does  not  in  fact  amount  to  title.     An  absolute 
nullity,  as  a  void  deed  or  judgment,  will  not  constitute  a  color  of  title. 

Bernal  v.  Gleim,  33  Cal.  668. 

• 

2.  Conveyance  Pending  Suit. — The  conveyance  of  the  de- 
manded premises  by  the  plaintiff  in  ejectment  pending  the  suit,  to  a 
person*  not  a  party  to  the  action,  does  not  necessarily  defeat  the  action. 
Barstow  v.  Newman,  34  Cal.  90. 

3.  Damages. — In  Wisconsin,  the  damages  in  ejectment  which  the 
plaintiff  is  entitled  to  recover,  include  only  the  rents  and  profits,  and 
not  damages  for  injuries  done  to  the  premises.     (Racquette  v.  Pick- 
ness,  19  Wis.  219.)     It  is  otherwise  in  California,  where  damages  may 
bealso  recovered  inthesame  action.  See  Post  "Rents  and  Profits."  Where 
damages  for  withholding  are  claimed,  the  plaintiff  should  state  the  title  of 
the  plaintiff  as  existing'  at  some  prior  date,  designating  it,  and  as  con- 
tinuing up  to  the  commencement  of  the  action,  and  the  entry  of  the 
defendant  at  some  date  subsequent  to  that  of  the  alleged  title  as  in  this 
form.     Payne  v.  Treadwell,  16  Cal.  220. 

4.  Constructive    Possession. — A   party  who   enters   into  the 
actual  possession  of  a  portion  of  a  tract  of  land,  claiming  the  whole 
under  a  deed  in  which  the  entire  tract  is  described  by  metes  and  bounds, 
is  not  limited  in  his  possession  to  his  actual  inclosure  or  possession, 
but  acquires  constructive  possession  to  the  entire  tract,  if  it  is  not  in  the 
adverse  possession  of  any  other  person  at  the  time  of  his  entry;  and 
such  person,  in  an  action  of  ejectment,  will  prevail  against  one  who 
enters   subsequently  upon  the   uninclosed   part,   as  a  mere  intruder. 
(Gunn  v.  Bates,   6  Cal.  272;    Rose  v.  Davis,  n  Cal.    133;    Baldwin 
7».    Simpson,    12     Cal.     560;     English    v.   Johnson,    17    Cal.     107; 
Kean    v.    Canavan,    21    Cal.    299;     Kile    v.   Tubbs,    23    Cal.    431; 
Hicks  v.    Coleman,    25    Cal.    122;    Hoag   v.    Pierce,    28    Id.    187; 
Davis  v.  Perley,  30  Cal.  630;  McKee  v.  Greene,  31  Id.  418;  Ayres  v. 
Bensley,  32  Id.  620.)     Upon  the  above  authorities  the  doctrine  is  con- 
sidered settled.     (Walsh  v.  Hill,  Cal.   Sup.  Ct.,  Oct.   T.,  1869.)     But 
there  must  be  some  show  of  good  faith,  which  does  not  appear  in  taking 
a  deed  from  a  stranger  having  no  title,  and  asserting  no  claim.     (Id.) 
Where  a  party  enters  upon  land  with  no  higher  evidence  of  title  than 


FOR    REAL    PROPERTY.  213 

that  which  the  law  presumes  from  his  possession,  and  distinctly  makes 
out  the  extent  and  boundaries  of  his  claim,  his  actual  possession  of  a 
part  within  these  boundaries  gives  him  constructive  possession  of  the 
whole.  Plumer  v.  Seward,  4  Cal.  94. 

5.  Deed  as  Evidence  of  Title. — Parties  and  privies  are  bound 
by  the  recitals  of  a  deed  through  which  they  claim  title.     (Holmes  v. 
Ferguson,  i    Or.   220;    Graham  v.  Meeks,  Id.  325.)     In  California,  a 
deed  made  prior  to  the  passage  of  the  Act  concerning  Conveyances 
must  be  first  recorded,  in  order  to  have  priority  over  a  subsequent  deed 
from  the  same  vendor  to  a  bona  fide  purchaser  for  value  without  notice. 
Anderson  v.  Fisk,  Cal.  Sup.  Ct.,  Oct.  T.,  1868;  citing  Call  v.  Hastings, 
3    Cal.    179;  Stafford  v.   Lick,  4    Cal.  479;    and   Clark  v,  Troy,    20 
Cal.  223. 

6.  Demise. — Though  the  demise  is  .a  fiction,  the  plaintiff  must 
count  on  one  which  if  real  would  support  his  action.     (Binney  v.  Chesa- 
peake and  Ohio  Canal  Co.,  8  Pet,  201.)     Where  the  right  of  entry  is 
by  virtue  of  the  title  of  the  wife,  the  demise  may  be  laid  in  the  name 
of  the  husband,  or  in  the  names  of  both  husband  and  wife.     Wood- 
ward v.  Brown,  13  Pet.  I. 

7.  Description  of  Premises.— If  the   description   of  the   de- 
manded premises  does  not  appear  upon  the  face  of  the  complaint  to  be 
insufficient,  it  is  a  question  of  fact  for  the  Court  or  jury  whether  the 
description  in  the  same  will  apply  to  the  land  sought  to  be  recovered. 
(Moss  v.  Shear,  30  Cal.  468.)     In  action  for  the  recovery  of  real  prop- 
erty, such  property  shall  be  described,  with  its  metes  and  bounds,  in  the 
complaint.     (Cal.  Pr.  Ad,  §  58.)     This  section  of  the  Practice  Act  is 
directory  only  if  the  complaint  describes  the  premises  sufficiently  other- 
wise to  identify  them  according  to  the  general  rules  on  this  subject.     The 
plaintiff  may  after  verdict  take  judgment,  and  the  Court  cannot  set  it 
aside  on  motion  of  defendant  on  account  of  this  defect  of  pleading. 
Buckman  v.  Whitney,  19  Cal.  300;  Beard  v.  Fedry,  3  Wall.  L7.S.  478. 

8.  Description — Quantity. — As  respects  premises  claimed,  less 
certainty  of  description  is  required  now  than  formerly.     Thus,  the  lessor 
of  the  plaintiff,  on  a  lease  for  a  specific  number  of  acres,  may  recover  any 
quantity  of  a  less  amount.     (Barclay  v.  Howell,  6  Pet.  498.)     But  he 
cannot  recover  more  than  is  described  in  the  complaint.     (Patton  v. 
Cooper,  I'Cooke,  133.)     Where  the  premises  were  described  as  "about 


214  FORMS    OF     COMPLAINTS. 

fifty  acres,"  etc.:  Held,  that  the  description  was  sufficient.     St  John  v. 
Northrop,  23  Barb.  25. 

9.  Description  by  Designation. — Where  a  complaint  in  eject- 
ment describes  the  land  thus:  "All  that  certain  tract  or  parcel  of  land 
situated  in  Xapa  County,  consisting  of  a  pre-emption  claim  of  one  hun- 
dred and  sixty  acres  of  land,  commonly  known  as  the  Soda  Springs, 
and  embracing  said  springs  and  the  improvements  thereto  belonging, 
and  being  about  five  miles  from  Napa  City  in  a  northerly  direction,"  it  is 
sufficient.     Buckman  v.  Whitney,  19  Cat.  300. 

10.  Description  by  Lines. — Monumental  lines  or  points  con- 
trol such  as  are  described  by  course  and  distance  only.     The  intention 
of  the  parties  should  be  ascertained  by  a  consideration  of  the  entire 
description.      (Piercy  v.  Crandall,  34  Cal.  334.)      A  description  of  real 
property  in  a  complaint  in  ejectment,  giving  one  of  the  lines  bounding 
the  premises  as  running  due  west  to  the  source  of  a  designated  creek, 
is  not  so  insufficient  and  indefinite  as  to  sustain  a  demurrer  on  the  ground 
of  its  alleged  insufficiency.     If  there  be  in  fact  more  than  one  source  of 
the  creek,  that  fact  cannot  be  taken  advantage  of  by  demurrer.     It  can 
only  be  matter  for  proof  on  the  trial.     (Carpentier  v.  Grant,  21    Cal. 
140.)     Where  the  complaint  gave  a  description  which  embraced  noth- 
ing whatever,  it  was  held  that  the  complaint  was  bad.     Budd  v.  Bir.g- 
ham,  1 8  Barb.  494. 

11.  Description  by  Indication. — By  indication,  a  description  is 
sufficient  which  indicates  and  identifies  the  premises.     (Green  v.  Palmer, 
15  Cal.  411;  Pane  v.  Silver,  16  Id.  73;  Grady  v.  Earley,  13  Id.  108.) 
A  complaint  in  ejectment,  describing  the  premises  as  "Lot  No.   i,  in 
Block  No.  23,  as  per  plot  of  the  Town  of  Red  Bluff  Land  Corporation, 
in  1853,  being  on  the  corner  of  Main  and  Sycamore  Streets,  25  feet  on 
Main  by  one  hundred  and  fifteen  feet  on  Sycamore,  and  running  back 
to  the  alley,"  and  specifying  the  County  in  \vhich§they  are  situated  by 
the  terms,  "in  said  County,"  referring  to  the  designation  "County  of 
Tehama"  in  the  title  of  the  suit,  sufficiently  describes  the  premises. 
The  description  by  metes  and  bounds  is  required  only  so  far  as  they 
may  be  necessary  to  identify  with  certainty  the  property.     Doll  v.  Ful- 
ler, 1 6  Cal.  432. 

12.  Description  by  Name. — Where  the  land  is  described  in 
the  complaint  by  a  certain  name,  it  is  sufficient  if  it  can  be  rendered 
certain  by  evidence.     (Castro  v.  Gill,  5   Cal.  40;  Stanley  v.  Green,  12 


FOR    REAL    PROPERTY.  215 

Id.  148;  Orton  z>.  Noonan,  18  Wis.  447.)  Where  the  complaint  in 
ejectment  avers  that  the  land  sued  for  is  known  by  the  name  of  "La 
Jota,"  heretofore  granted  to  plaintiff  by  the  Mexican  Government,  and 
the  patent  issued  thereon  refers  to  the  grant,  the  proceedings  before  the 
Land  Commission,  and  the  United  States  Court  for  confirmation,  these 
recitals  in  the  patent  support  the  averment  of  title  through  the  grant. 
Yount  v.  Howell,  14  Cal.  465;  see  Budd  v.  Bingham,  18  Barb.  494. 

13.  Description,  Variance   in. — As  to   variance    between  the 
allegations  and  the  proof  respecting  the  premises,  see  Kellogg  v.  Kel- 
logg, 6  Barb.  116;  Wood  v.  Staniels,  3  Code  R.  152. 

14.  Entry  and  Right  of  PoEsession. — To  entitle  plaintiff  to 
recover,  he  must  not  only  have  a  right  of  entry  at  the  time  of  the  trial,  but 
must  have  had  it  also  when  the  suit  was  brought.     (Kile  v.  Tubbs,  32 
Cal.  332.)     And  that  right  of   entry  cannot  be   impaired  by  any  fraud, 
misrepresentation,  or  collusion  practiced  by  him  to  obtain  possession. 
(Dupuy  v.  Williams,  26  Cal.  309.)   But  an  entry  upon  a  lot  in  possession 
of  another  is  not  complete  until  he  has  expelled  the  other  party,  and 
has  effected  an  exclusive  lodgment.     (Valencia  v.  Couch,  32  Cal.  339.) 
An  entry,  with  full  notice   of  plaintiff's  rights,  during  the  temporary 
removal  of  his  inclosure,   cannot  be  defended  on  the  ground  that  the 
lands  were  uninclosed.     (Sweetland  v.  Hill,  9  Cal.  556.)     A  defendant 
in  ejectment,  entering  under  a  deed  executed  by  order  of  a  court  of 
competent   jurisdiction,  enters    under   color   of   title.     He  is   not   a 
naked  trespasser,  and  may  set  up  an  outstanding  title  in  a  third  person. 
Gregory  v.  Haynes,  13  Cal.  591. 

15.  Essential  Averments. — In   the  action   of  ejectment,  the 
material  facts  which  are  essential  to  be  alleged  by  the  plaintiff  are: 
First,  The  title  of  the  plaintiff.    Second,  Possession  by  the  defendant. 
None  of  the   technical   allegations   peculiar   to   the  old  practice  are 
necessary.     (Payne  v.  Treadwell,  16  Cal.  220.)     Under  our  system  the 
plaintiff  is  not  limited  to  any  form  of  complaint.    He  may  aver  seizin  in 
fee,  or  some  estate  therein,  or  prior  possession  and  ouster;  but  whatever 
is  put  in  issue  will  be  final  and  conclusive.     (Stark  v.  Barrett,  1 5  Cal. 
361;  Caperton  v.  Schmidt,  26  Cal,  479;  Payne  v.  Treadwell,   16   Cal. 
220.)     Where  the  allegations  of  a  complaint  in  the  District  Court  are, 
that  the  plaintiff  was  in  possession,  and  lawfully  entitled  to  the  posses- 
sion,   at   the  time    he  was   evicted  by  the  defendant:  Held,  that  the 
complaint  must  be  treated  as  a  declaration  in  ejectment.     Ramirez   v. 
Murray,  4  Cal.  293. 


2l6  FORMS    OF     COMPLAINTS. 

16.  Entry,  Insufficient. — A  mere  entry,  without  color  of  title. 
accompanied  by  a  survey  and  marking  of  boundaries,  is  not  sufficient. 
(Murphy  r.  Wallingford.  6  Cal.  648.)     So,  occupation   and  cultivation 
can  have  no  greater  effect  than  a  private  survey.     (Waterman  v.  Smith, 
13  Cal.  373.)  And  a  mere  survey,  and  marking  the  lines  of  a  boundary, 
without  an  inclosure  of  the  premises,  is  not  a  possession  in  law,  unless 
made  so  by  compliance  with  the  statutes  in  reference  to  possessory 
actions  on   public  lands.     (Bird  v.  Dennison,  7  Cal.   297.)     So,    the 
mere  inclosure  of  the    lot  with  a   brush   fence,  from    two  to  three  feet 
high,  without  any  other  steps  taken  to  subject  the  property  to  any  use,  is 
not  sufficient  evidence  of  ownership  or  right  of  possession.       Hulton  ?>. 
Schumaker,  21  Cal.  453. 

17.  Form  of  Action. — The  plaintiff  is  not  limited  to  any  partic- 
ular form   of  complaint,  but  the   form  may  be  adapted  to  the  facts 
desired  to  be  put  in  issue.     Plaintiff  may  allege  that  he  is  seized  of  the 
premises,  or  of  some  estate  therein,  in  fee,  for  life,  or  for  years,  or  he 
may  aver  a  former  possession  and  ouster;  but  whatever  is  put  in  issue 
and  determined,   is  conclusive  and  final.     (Caperton  v.  Schmidt,   26 
Cal.   490;  see,  also,   Steinback  v.  Fitzpatrick,    12  Id.  295.)     In  New- 
York,  the  complaint  in  an  action  under  the  Code  to  recover  the  posses- 
sion of   real  property  need  not  be  drawn  in  the   form   employed  in 
declarations  in  ejectment  suits,  under  the  revised  statutes.     (Walter  v. 
Lockwood,  4  Abb.  Pr.  307.)      Both  the  complaint  and  answer,  in  such 
actions,  should  conform  to  the  rules  of  pleading  laid  down  in  the  Code, 
and  their   sufficiency  is  to  be  tested  by  those  rnles.     Id.;  the  case  of 
Warner  v.  Nellingar,  12   How.  Pr.  402;   and   Lawrence  v.  Dwight,  2 
Duer,  673,  disapproved. 

13.  Highways. — Ejectment  lies  by  the  owner  in  fee  against  one 
who  has  exclusively  appropriated  a  part  of  a  public  street  or  highway  to 
his  own  private  use.  (i  Burr.  133;  15  Johns.  447;  Brown  v.  Galley, 
Hill  &  D.  Supp.  308.)  And  where  the  owner  in  his  conveyance 
excepts  the  portions  included  in  the  highway,  he  may  maintain  eject- 
ment against  his  grantee,  for  encroachments  thereon,  or  exclusive  occu- 
pation. (Smith's  Lead.  Cas.  183;  Etz  v.  Daly,,2O  Barb.  32.)  But  the 
possession  must  be  exclusive  of  the  public.  (Redfield  v.  Uticaand  Syra- 
cuse R.R.  Co.,  25  Barb.  54.)  Possession  of  land  adjoining  a  road  for 
seventy  years  is  sufficient  to  enable  plaintiff  to  maintain  ejectment  as  to 
the  roadway.  (Dunham  v.  Williams.  36  Barb.  136.)  That  ejectment  is 
a  proper  remedy  for  the  appropriation  of  a  highway,  see  24  N.Y.  655; 


FOR    REAL    PROPERTY.  2I/ 

Lozier  v.  N.Y.  Cent.  R.R.  Co.,  42  Barb.  465;   Wager  v.  Troy  Union 
R.R.  Co,  25  A:?'.  526. 

19.  Identifiying     Land    in    Controversy.— Where   plaintiff 
claims  title  under  deed  from  the  commissioners  of  the  funded  debt  of 
the  City  of  San  Jose,  it  is  incumbent  on  the  plaintiff  to  show  that  the 
premises  had  not  been  granted  or  conveyed  by  the  Pueblo  or  the  City 
prior  to  the  execution  of  the  deed  of  the  commissioners  to  the  plaintiff's 
grantor.    (Halloway  v.  Galliac^  Cal.  Sup.  Ct.,  Oct.  7'.,  1869.)    So,  where 
the  conveyance  was  of  "  the  balance"  of  the  tract  of  fourteen  hundred 
acres,  the  Court  held  that  it  was  necessary  to  show  what  "the  balance  '' 
was,  and  that  it  included  the  land  in  controversy.     (Taylor  v  Taylor,  3 
A.   K.  Marshall,    19;   Mayor  and  Common   Council   of  San  Jose   v. 
Uridias,  Cal.  Sup.  C.,  Apl.  71,  1869;  cited  in  Halloway  z>.  Galliac,  Cal. 
Sup.  Ct.,   Oct.  71,  1869.)     A  party  claiming  title  under  a  deed  cannot 
show  title  to  the  premises  in  controversy  by  the  mere  production  and 
proof  of  the  deed ;  he  must  show  that  the  description  of  the  land  in  the 
deed  includes  the  land  in  controversy.     (Halloway  v.  Galliac,  Cal.  Sup. 
Ct.,  Oct.  7.,  1869;  see,  also,  Valentine  v.  Jansen,  Cal.  Sup.  Ct.,  Oct.  71, 
1869;  and  McGarvey  v.  Little,  15   Cal.  27.)     \Vhere  there  is  a  mistake 
in  the  first  call  of  a  deed,  and  the  remaining  calls  are  sufficient  to  iden- 
tify the  land,  the  Court  may  hold  that  the  land  in  controversy  is  covered 
by  the  deed.     Moss  v.  Shear,  30  Cal.  479;  Reamer  v.  Nesmith,  34  Cal. 
624;  cited  in  Walsh  v.  Hill,  Cal.  Sup.  Ct.,  Oct.  71,  1869. 

20.  1: 3 junction. — In  a  complaint  in  ejectment,  parties  may  seek, 
in  addition  to  a  recovery  of  the  premises,  an  injunction  restraining  the 
commission  of  trespass  in  the  nature  of  waste  pending  the  action;  but 
the  grounds  of  the  equity  interposition  should  be  stated  subsequently  to 
and  distinct  from  those  upon  which  the  judgment  at  law  is  sought. 
Natoma  Water  and  Mining  Co.  v.  Clarkin,  14  Cal.  544. 

21.  Joinder  of  Actions. — A  claim  to  recover  possession  of  a 
farmhouse  and  yard,  occupied  by  plaintiff's  permission,  and  damages  for 
trespass  on  the  farm,  cannot  be  joined  in  one  complaint.     (Hulce  v. 
Thompson,  9  Hmv.  Pr.  113.)     For  a  claim  for  injuries  to  the  freehold 
cannot  be  joined  with  a  demand  for  reserve  profits.     (Frost  v.  Duncan, 
19  Barb.  560.)     In  Illinois,  a  party  who  holds  a  bond  and  mortgage  to 
secure   a  debt  may  maintain  an  action  of  ejectment  to  recover  the 
mortgaged  premises,  foreclose  the  equity  of  redemption  in  chancery, 
and  sue  on  the  bond,  and  have  all  these  actions  proceed  at  the  same  time. 
3  Scam.  203;  26  III.  g. 


2l8  FORMS    OF     COMPLAINTS. 

* 

22.  Illinois. — Under  the  laws  of  Illinois,  two  things  are  necessary: 
First,  Possession;  and,  Second,  A  connected  title  at  law  or  equity.    See 
Arrowsmith  v.  Burlingim,  4  McLean,  489;  Moore  v.  Brown,  ti   How. 
U.S.   414;    affirming,  S.C.,  4  McLean,  211;  consult  Scales'  Treat,  and 
Stat.  <?/"///.  214. 

23.  Joint  Liability. — If  one  of  two  defendants,  with  the  knowl- 
edge and  consent  of  the  other,  employs  men  to  remove  buildings  and 
fences  from  land,  turn  out  the  occupants,-  -and  take  possession,  the  acts 
performed  and  possession  so  acquired  are  as  much  the  acts  and  posses- 
sion of  the  one  who  assented  to  them  in  advance,  and  for  whose  benefit, 
in  part,  such  possession  was  taken  and  held,  as  of  the  party  who  actually 
employed  the  men,  and  directed  the  acts  to  be  done.     Treat  v.  Reilly, 
35  Cal.  129. 

24.  Land  Subject  to  Easement. — Notwithstanding  the  land 
is  subject  to  a  public  easement,  e.g.,  where  it  has  been  appropriated  as 
a  street,  the  owner  of  the  fee  may  maintain  an  action  on  the  nature  of 
ejectment  against  one  occupying  it  unlawfully,  e.g.,  by  laying  a  railroad 
track  on  it.     (Carpenter  v.  Oswego  and  Syracuse  R.R.   Co.  24  N.Y. 
655;  contra,  Wicklow  v.  Lane,  37  Barb.  244.)     But  an  action  of  eject- 
ment does  not  lie  against  a  municipal  corporation  for  using  and  grant- 
ing plaintiff's  land  as  a  street.    Such  acts  are  evidence  only  of  a  claim  to 
a  mere  easement.     (Cowenhoven  v.  City  of  Brooklyn,  38  Barb.  9.) 
The  action  of  ejectment  does  not  lie  for  an  easement  which  is  not  a 
title  to  or  interest  in  land.     3  Kent's  Com.  419;  5  Barn.  &  C.  221. 

25.  Matters  Redundant. — Matters  of  evidence,  such  as  aver- 
ments of  deraignments  of  title,  and  unnecessary  matters  of  description 
of  demanded  premises,  should  be  stricken  out  of  a  complaint  in  eject- 
ment.    (Larco  v.  Casaneuava,  30   Cal.    560;  Dupuy  v.  Williams,  26 
Cal.  313;  Wilson  v.  Cleveland,  30  Cal.  192.)      The  complaint  need 
not  state  the  residence  of  the  parties.     (Doll  v.  Teller,  16  Cal.  433.) 
Allegations  that  defendant's  possession  is  "unlawful"  and  plaintiff's 
title  is  "  lawful"  are  wholly  unnecessary.     (Payne  z>.  Treadwell,  16  Cal. 
220;  Sanders  v.  Leavy,  16  How.  Pr.  308.)     Nor  is  it  necessary  to  set 
out  the  mesne  conveyances  through  which  the  plaintiff  deraigns  title; 
(Norris  v.  Russel,  5   Cal.  249;  Leigh  Co.  v.  Independent  Ditch  Co.,  8 
Cal.  328;  Godwin  v.  Stebbins,  2  Id.  103;  and  see   Hagley  v.  West,  3 
L.  J.  Ch.  63;)  since  these  are  but  averments  of  evidence,  and  are  not 
admitted  by  a  failure  to  deny  them  in  the  answer.     (Siter  v.  Jewett,  33 
Cal.  92.)     And  a  complaint  in  ejectment  should  -not  state  matters  of 


FOR    REAL    PROPERTY.  2  19 

evidence,,  but  only  the  ultimate  facts  constituting  the  cause  of  action. 
(Dupuy  v.  Williams,  26  Cal.  209.)  To  set  out  the  facts  connected  with 
the  title,  and  the  wrongful  acts  of  the  defendant,  would  produce  confu- 
sion without  benefit.  Garrison  v.  Sampson,  15  Cal.  93. 

26.  Measure  of  Relief. — A  complaint  may  be  for  two  separate 
and  distinct  pieces  of  land;  but  the  two  causes  of  action  must  be  sepa- 
rately stated,  affect  all  the  parties  to  the  action,  and  not  require  different 
places  of  trial.     (Boles  v.  Cohen,  15    Cal.  150.)     Distinct  parcels  of 
land  may  not  only  be  included  in  one  complaint,  if  covered  by  one  title, 
but  a  demand  for  their  rents  and  profits,  or  for  damages  for  withholding 
them,  may   also   be   included.     (Beard  v.  Federy,  3  Wall.  U.S.  478.) 
In  an  action  to  recover  possession  of  land,  brought  against  a  party  who 
was  a  naked  trespasser  upon  his  entry,  and  who,  while  such  trespasser, 
made  improvements,  but  afterwards  became  a  co-tenant,  the  plaintiff 
can  recover  the  increased  value  of  the  rents  and  profits  arising  from 
such  improvements.     Carpentier  v.  Mitchell,  29  Cal.  330. 

27.  Mexican  Grants. — One  who,  without  the  permission  of  the 
grantee,  takes  possession  of  land  within  the.  boundaries  of  a  Mexican 
grant,  whether  perfect  or  inchoate,  before  the  final  survey  is  made  by 
the  United  States,  is  guilty  of  an  ouster,  although  informed  by  the  grantee 
that  the  land  so  taken  is  not  within  the  limits  of  the  grant.     (Love  v. 
Shartzer,  31  Cal.  487.)     For  land  within  the  boundaries  of  the  general 
tract  granted  to  Sutter,  in  the  County  of  Sacramento,  ejectment  will  lie 
directly  upon  the  grant,  although  no  official  survey  and  measurement 
has  yet  been  made  by  the  offices  of  the  Government,  and  although  it 
may  appear,  when  such  survey  and  measurement  are  made,  that  there 
exists  within  the  exterior  limits  of  the  general  tract  a  quantity  exceeding 
the  eleven  leagues.       Cornwall  v.  Culver,   16  Cal.  423;    affirmed  in 
Riley  v.  Heisch,  18  Cal.   198;    see,  also,  Mahoney  v.  Van  Winkle,  21 
Cal.  552. 

23.  Missouri. — The  act  of  1826,  regulating  ejectment,  requires 
the  plaintiff  to  allege  not  only  that  he  is  entitled  to  the  premises,  but 
that  he  is  legally  entitled  to  the  possession  of  them.  (R.S.  1,825,  343; 
Jamison  v.  Smith,  4  Mo.  202.)  A  wife  cannot  be  joined  with  her 
husband  as  defendant  in  ejectment,  merely  for  the  reason  that  she  lived 
with  him  upon  the  premises.  (Meegan  v.  Gunsollis,  19  Mo.  417.) 
And  if  a  female,  in  an  action  of  ejectment,  marries  while  the  case  is 
pending,  the  plaintiff  is  not  bound  to  make  the  husband  a  party,  unless 


22O  FORMS    OF     COMPLAINTS. 

the  latter  applies  to  be  made  such.  (Evans  v.  Greene,  21  Mo.  170.) 
A  mortgagee  may  maintain  ejectment  against  the  mortgagor  or  those 
claiming  under  him.  (Valcop  v.  McKinney,  10  Mo.  229.)  One  will 
not  be  allowed  to  recover  property  under  a  deed  which  does  not 
include  within  its  description  the  property  claimed,  although  the  party 
under  whom  he  claims,  holding  by  a  deed  with  a  similar  description  of 
the  premises,  may  have  acquired  title  by  adverse  possession  or  in  some 
other  manner.  (Menkins  v.  Blumenthal,  19  Mo.  496.)  An  executor 
or  administrator,  as  such,  cannot  maintain  ejectments  for  lands  of  which 
the  testator  or  intestate  died  seized.  (Burdyne  v.  Mackey,  7  Mo.  374.) 
Ejectment  cannot  be  maintained  against  a  minor  upon  the  possession 
of  his  guardian.  Spitts  v.  Wells,  18  Mo.  468. 

29.  Mortgage. — The  mortgagee  will  not  be  permitted  to  set  up  an 
adverse  possession  to  bar  the  rights  of  the  mortgagor.     (Gordon  v. 
Hobart,  2  Sumn.  401;  compare  Dexter  v.  Arnold,  2  Id.  152.)     Nor  is 
the  possession  of  the  mortgagor  adverse  to  the  rights  of  the  mortgagee. 
(Higginson  v.  Mein,  4  Cranch,  415;  see,  also,  Connor  v.  Whitmore,  52 
Me.  185;)   where  it  is  held  a  mortgagor  cannot  maintain  ejectment 
against  a  mortgagee  in  possession.     But  after  forfeiture  the  mortgagee 
may  maintain  ejectment.      (2  Ohio,  223;    3  Scam.  203;    30/77.  224.) 
In  California,  the  practice  is  to  foreclose  the  mortgage  and  sell  the 
property,  and  mortgagee  cannot  maintain  ejectment  until  he  has  a 
sheriffs  deed.     A  bare  mortgage  of  the  premises  will  not  sustain  such 
action,  under  the  rule  that  a  mortgagee  cannot  bring  ejectment  for  the 
mortgaged  premises.     (See  Sahler  v.  Signer,  37  Barb.  329.)     That  no 
action  of  ejectment  shall  be  maintained  by  a  mortgagee,  applies  to 
one  who  holds  by  a  conveyance,  absolute  upon  its  face,  but  really  given 
to  secure  a  debt.     (Murray  v.  Walker,  31  N.Y.  399.)     The  title  of  a 
mortgagee  in  possession  after  condition  broken,  is  not  divested  by  a  sale 
on  a  judgment  against  the  mortgagor,  so  as  to  allow  a  recover}'  in  an 
action  of  ejectment  by  a  purchaser  at  such  sale.     It  is  otherwise, 'how- 
ever,  if  the   mortgagee  never  took  possession.     Hall  v.  Tunnell,   i 
Houst.  320. 

30.  Ouster. — The  averment  of  wrongful  withholding  is  equivalent 
to  averment  of  an"  ouster.     (Marshall  v.  Shatter.  32  Cut.  176.)     And 
the  ouster  must  be  alleged  subsequent  to  the  date  of  plaintiff's  title. 
(Coryell  v.  Cain,  16  Cat.  567.)     But  the  complaint  need  not  state  the 
exact  time  of  the  alleged  ouster,  especially  where  no  claim  is  made  for 
damages,  and  no  recovery  had  for  them — the  allegation  in  this  case,  as 


FOR    REAL    PROPERTY.  221 

to  time  of  ouster,  being   "on  or  about ,  18.  .."     (Collier  v. 

Corbett,  15  Cal.  183.)  The  date  of  the  ouster  need  not  be  alleged. 
(Woodward  v.  Brown,  13  Pet.  i.)  The  date  is  only  material  with  ref- 
erence to  mesne  profits.  (Stark  v.  Barrett,  15  Cal.  361.)  Under  an 
allegation  of  an  ouster,  a  holding  over  may  be  shown.  (Garrison  v. 
Sampson,  1 5  Cal.  93.)  In  an  action  against  plaintiffs  co-tenant,  it  is 
sufficient  for  the  plaintiff  to  show  that  the  defendant's  entry  into  posses- 
sion was  under  a  claim  hostile  to  the  rights  of  the  plaintiff.  (Clason  v. 
Rankin,  i  Duer,  337.)  To  enable  the  plaintiff  to  recover  on  prior 
possession,  he  must  allege  and  prove  an  actual  ouster.  (Watson  v. 
Zimmerman,  6  Cal.  46.)  Under  an  allegation  of  an  ouster,  a  holding 
over  may  be  shown.  (Garrison  v.  Sampson,  15  Cal.  93.)  As  to  allega- 
tion of  ouster  being  necessary  for  a  recovery,  see  Lawton  v.  Gordon, 
Cal.  Sup.  Ct.,  Apl.  7\,  1869. 

31.  Overflowed  Lands. — A  grant  of  land  under  water,  for  the 
purpose  of  erecting  a  wharf  thereon,  is  not  an  easement.     The  right  to 
build  a  wharf  and  take  tolls  is  an  easement.     But  as  incident  to  this 
right,  a  grant  of  the  use  and  occupancy  of  a  strip  of  overflowed  land 
conveys  an  estate  in  the  land  which  authorizes  the  grantees  to  take 
possession,  occupy,  and  control  it  for  the  purposes  of  the  grant.     It  is 
something  of  which  they  could  be  dispossessed,  and,  if  ousted,  ejectment 
would  lie.     (See  St.  Lawrence  R.R.  Co.  v.  Valentine,  19  Barb.  487.) 
Where  a  right  of  entry  existed,  and  the  interest  is  tangible  so  that  pos- 
session could  be  given,  ejectment  would  lie.     (See  Jackson  v.  Buel,  9 
Johns.  298;    Jackson  v.  May,  16  Id.  184:    Co.  Litt.  5;   i  Tyler,  335;  2 

Yeates,  333;  Peoples  v.  Mauran,  5  Den.  389;  Adams  on  Eject.  18;  2 
Bac.  Abr.  4-17;  i  M.  &  W.  210;  15  Barb.  357;  cited  in  Frisbie  v. 
McClernin,  Cal.  Sup.  Ct.,  Jul  T.,  1869.)  So,  though  it  will  not  lie  for 
a  water  course,  yet  it  will  lie  for  the  ground  over  which  the  water  passes. 
Yelv.  143. 

32.  Owner. — The  allegation  that  the  plaintiff  "  is  the  owner •"  of 
the  land  is  in  substance  an  allegation  of  seizin  in  fee,  in  "  ordinary  " 
instead  of  technical  language.      Garwood  v.  Hastings,  Cal.  Sup.  Ct., 
Jul.  T.,  1869;  citing  Payne  v.  Treadwell,  16  Cal.  242,  244.  • 

33.  Parties  Plaintiff— At  the  common  law  the  grantee  of  the 
reversion  could  not  enter  or  bring  ejectment  for  breach  of  the  covenants 
of  a  lease.     (Sheets  v.  Shelden's  Lessee,  2  Wall.  U.S.  177.)     In  Ohio, 
a  wife,  under  a  decree  giving  her  the  use  of  a  house  and  lot  for  alimony, 


222  FORMS    OF     COMPLAINTS. 

may  recover  the  possession  in  an  action  of  ejectment.  ( Wright,  205.) 
Even  in  case  of  a  naked  trustee,  in  general  the  Court  will  not  go  behind 
the  naked  legal  title  and  inquire  into  the  equities.  A  trustee  may 
recover  in  ejectment  against  the  cestui  que  trust.  (5  Gilm.  236;  31  ///. 
468.)  A  petitioner  in  insolvency  may  maintain  ejectment  to  recover 
the  homestead.  Moore  v.  Morrow,  28  Cat.  551. 

34.  Parties  Defendant. — An  action  of  ejectment  to   recover 
land  in  the  possession  of  an  employee,  should  be  brought  agairist  the 
employer.      (Hawkins  v.  Reichert,  28  Cal.  534.)      In  ejectment  one 
or  several  defendants  may  be  sued.     Ellis  v.  Jeans,  7  Cal.  499. 

35.  Pennsylvania. — The  common  law  remedy  by  ejectment,  as 
a  means  of  compelling  specific  performance,  is  not  taken_away  in  Penn- 
sylvania by  the  grant  of  equity  powers  to  the  courts  of  common  pleas. 
(Corson  v.  Mulvany,  49  Penn.  88.)     The  grant  of  land  by  the  govern- 
ment passes  at  once  to  the  grantee  the  legal  possession  as  well  as  the 
title,  which  continues  until  he  is  disturbed  by  an  actual  adverse  possession. 
(8  Cranch,  229;  Potts  v.  Gilbert,  3  Wash.  C.  Ct.  475.)     As  to  effect  of 
paying  taxes  or  of  omitting  to  pay  taxes  and  buying  in  at  a  tax  sale, 
see  Girard  v.  City  of  Philadelphia,  2  Wall.  jr.  C.  Ct.  301;    Ewing  v. 
Burnett,   n  Pet.  41;  i  Mcl^an,  266;  Wilkes  v.  Elliot.  5  Cranch,  611. 

36.  Possession  by  Plaintiff! — A  complaint  which  shows  that 
the  plaintiff  is  in  possession,  is  bad  on  demurrer.      2  Cai.  335;  Taylor 
v.  Crane,  15  How.  Pr.  358;  see,  also,  Hulce  v.  Thompson,  9  Id.  113; 
Budd  v.  Bingham,  18  Barb.  494;  Frost  v.  Duncan,  19  -Id.  560. 

37.  Possession  by  Defendant. — The  burden  of  showing  five 
years'  adverse  possession  is  on  the  defendant.     The  plaintiff  having 
shown  title,  the  possession  is  presumed  to  follow  the  title.      (Garwood 
v.  Hastings,  Cal.  Sup.  Ct.,  Jul.  T.,  1869.)    If  it  be  shown  that  defendant 
was  in  possession  before  and  after  suit,  plaintiff  need  not  show  him  to  be 
in  possession  on  the  day  suit  is  brought.    (Doe  v.  Roe,  30  Ga.  553.)    It 
would  seem  that  in  Wisconsin,  it  is  not  necessary  to  allege  that  defendant 
is  in  possession  at  the  time  of  the  commencement  of  the  action.  (Herrick 
v.  Graves,  16  Wis.  157.)     The  possession  by  the  defendant  is  an  issu- 
able  fact,  and  its  possible  rightful  character  need  not  be  negatived. 
(Payne  v.  Treadwell,  16  Cal.  244.)     And  a  continued  adverse  holding 
must  be  shown.     Steinback  v.  Fitzpatrick,  12  Cal.  295. 

38.      Possession    as    Evidence    of  Title. — (See   Hicks  v. 


FOR    REAL    PROPERTY.  223 

Davis,  4  CaL  69;  Plume  v.  Seward,  4  Id.  94;  Murphy  v.  Walling- 
ton,  6  Id.  649;  Wolf  v.  Baldwin,  19  Id.  314;  Dyson  v.  Bradshaw, 
23  CaL  537;  Hutchinson  v.  Perley,  4  Id.  33;  Bird  v.  Lisbros,  9 
Gz/.  i;  Norris  z>.  Russel,  5  Gz/.  249;  Sac.  Vail.  R.R.  Co.  v.  Moffatt,  7 
Gz/.  577.)  So  of  agricultural  land,  as  against  a  trespasser.  (Burdge  ?'. 
Smith,  14  Cal.  380.)  That  the  possession  of  real  property  raises  the 
presumption  of  title  in  the  possession,  see  (Bernal  v.  Gleim,  33  Cal.  668.) 
It  is  evidence  of  seizin  in  fee.  (Keame  v.  Cannovan,  21  Cal.  291.) 
And  the  possession  of  the  grantor  under  whom  the  plaintiff  claims 
inures  to  the  benefit  of  such  plaintiff.  (Rose  v.  Davis,  n  Cal.  133.) 
But  it  must  be  an  actual  bona  fide  occupation  or  possessio  pedis,  and  not 
a  mere  assertion  of  title  and  the  exercise  of  casual  acts  of  ownership 
such  as  recording  deeds,  paying  taxes,  etc.  (Plume  v.  Seward,  4  Cal. 
94.)  Nor  by  insufficient  fencing  without  actual  occupation.  (Borel  v. 
Rollins,  30  Cal.  408.)  But  the  fact  that  a  person  is  in  the  possession 
of  one  acre  does  not  raise  any  presumption  that  he  has  title  to  an 
unlimited  tract  in  the  same  neighborhood.  Havens  v.  Dale,  18 
Cal.  359. 

39.  Possession  as  Notice  of   Title. — Open   and   notorious 
possession  of  land,  existing  at  the  time  of  the  acquisition  of  title  or  deed 
of  the  subsequent   vendee,  is  evidence  of  notice  to  him  of  title,  even 
though  the  first  vendee  have  an  unrecorded  deed  for  it.     (Hunter   v. 
Watson,  12  Cal.  363.)     And   this   rule   applies   as   well  to  any  other 
title  consistent  with  the  possession.     (Partridge  v.  McKenney,  10  Cal. 
181;  Havens   v.  Dale,  18  Cal.  359;  Woodson  v.  McCane,  17  Id.  298; 
see,  also,  Lestrade  v.  Earth,  19  Cal.  660;  Dutton  v.  Warschauer,  21  Cal. 
609;  Fair  v.  Stevenot,  29  Cal.  486.)     So,  such  possession  by  a  tenant 
is  sufficient  to  put  the  purchaser  upon  inquiry  as  to  the  landlord's  title. 
(21  Cal.  609;  Landers  v.  Bolton,  26  Cal.  393.)     The  possession  of  the 
grantor   is  that  of  the   purchaser.     (Ellis   v.  Jeans,  7  Cal.    409.)     A 
purchaser  of  the  legal  title   has   notice  of  the   equity   of  another   in 
possession.     Bryan   v.  Ramuriez,  8  Cal.  461;  see,  also,  Morrison   v. 
Wilson,  13  CaL  494. 

40.  Property   in    Another. — When    parties  assert,  either   by 
declaration  or  conduct,  the  title  to  the  property  to  be  in  othe^,  the  statute 
of  course  cannot  run  in  their  favor,  and  their  possession  is  not  adverse. 
McCracken  v.  City  of  San  Francisco,  16  CaL  591. 

41.  Public  Lands. — To  constitute  adverse  possession  on  public 
lands,  it  is  sufficient  if  the  party  in  possession  claims  against  all  the 


224  FORMS    OF    COMPLAINTS. 

world,  except  the  United  States.  It  is  not  necessary  that  he  possesses 
under  color  of  title.  (Page  v.  Fowler,  28  Cal.  605.)  But  the  pre- 
tended possession  of  land  with  an  insufficient  inclosure,  but  without 
actual  occupancy,  will  not  establish  adverse  possession.  (Borel  v.  Rol- 
lins, 30  Cal.  408.)  But  one  claiming  to  have  acquired  a  title  to  land 
by  adverse  possession  of  five  years,  need  only  show  that  such  possession 
was  held  by  an  inclosure,  and  need  not  prove  occupation,  cultivation, 
or  use  of  the  premises.  Polack  v.  McGrath,  32  Cal.  15;  Ewing  v  Bur- 
nett, ii  Pet.  41;  affirming  S.C.,  i  Mcl^ean,  266;  and  see  Watkins  v. 
Holman,  16  Pet.  25. 

42.  Rents  and  Profits. — Where  rents  and  profits  are  claimed, 
the  complaint  must  state  the  title  of  the  plaintiff  as  existing  at  some 
prior  date  and  continuing  up  to  the  commencement  of  the  action,  and 
the  entry  of  the  defendant  at  some  date  subsequent  to  that  of  the  alleged 
title.     (Payne  v.  Treadwell,  16  Cal.  248.)     He  is  entitled  to  damages 
measured  by  the  value  of  the  rents  and  profits  up  to  the  time  the  judg- 
ment is  rendered.     (Love  v.  Shartzer,  31   Cal.  487;  Rich  v.  Maples, 
33  Cal.  102.)     But  the  rents  and  profits  must  be  shown  by  the  complaint 
to  be  connected  with,  and  arising  out  of  the  wrongful  withholding  of 
possession;  (Tompkins  v.  White,  8  How.  Pr.    520;)  and  are  limited 
to  such  as  accrue  subsequent  to  the  ouster  alleged.     (Yount  v.  Howell, 
14  Cal.  465;)  or  subsequent  to  the  accruing  of  his  right  of  possession. 
(Clark  v.  Boyreau,  14  Cal.  634.)     But  in  an  action  to  recover  posses- 
sion of  land  on  a  title  acquired  by  sheriff's  sale  and  deed  thereunder, 
the  plaintiff  cannot  recover  the  rents  and  profits  accrued  during  the 
period  allowed  for   redemption;    (Clarke   v.   Boyreau,    14   Cal.    634; 
Henry  v.  Evarts,  30  Cal.  425;)  as  the  right  depends  upon  title.     An 
allegation  of  the  value  of  the  use  and  occupation,  rents  and  profits  of 
the  premises  for  the  period  during  which  defendants  were  in  the  wrong- 
ful possession  and  excluded  plaintiff,  is  sufficient  to  charge  defendants, 
without  any  averment  that  they  received  such  rents  and  profits.     Patter- 
son v.  Ely,  19  Cal.  28;  see,  further,  Note  55. 

43.  Rents  and  Profits,  Demand  for. — In  Ohio,  the  demand 
for  rents  and  profits  is  deemed  a  separate  cause  of  action,  and  should 
be  separatfly  stated.     (See  Swan  on  PL  444;  Ohio  Code,  §§  559,  564; 
McKinney  v.  McKinney,  8  Ohio,  423.)     So  in  New  York.     (Holmes  v. 
Davis,  21  Barb.  265.)     A  demand  of  damages  for  the  ouster  does  not 
cover  them.     (Livingston  v.  Tanner,  12  Barb.  481.)     In  California, 
when  they  are  claimed  in  an  independent  suit,  the  record  of  recovery 


FOR    REAL    PROPERTY.  225 

in  ejectment  is^  as  to  the  title,  only  evidence  of  the  right  of  possession 
of  the  plaintiff  at  the  commencement  of  the  action  in  which  the 
recovery  was  had.  (Yount  v.  Howell,  14  Cal.  465.)  The  Legislature 
has  no  power  to  enable  another  person,  who  has  no  title,  to  recover  from 
the  persons  entitled  to  the  possession,  the  rents  and  profits  of  the  land. 
Rich  v.  Maples  33  Cal.  102. 

44.  Rents    and    Profits — Right   to. — The    right    to    mesne 
profits    is   a   necessary   consequence   of    the   recovery   in   ejectment. 
(Benson  v.  Malsdorf,  2  Johns.  369;  Jackson  v.  Randall,   u  Id.  405; 
Baron  v.  Abeel,  3  Id.  481.)     But  defendant  is  only  to  be  held  liable 
for  the  time  he  was  in   possession,  in  fact,  or  in  judgment  of  law. 
(Byers  v.  Wheeler,  4  Hill  &  D.  Supp.  389.)    And  the  measure  of  dam- 
ages in  such  action  is  that  which  would  obtain  in  assumpsit  for  use  and 
occupation.     (Holmes  v.  Davis,   19  N.Y.  488.)     Under  our  practice 
(California),  it  is  competent  for  the  plaintiff  to  recover  real  property, 
with  damages  for  withholding  it,  and  the  rents  and  profits,  all  in  the 
same  action,  and  as  one  cause  of  action.     (Sullivan  v.  Davis,   4   Cal. 
291.)     And  if  plaintiff  is  in  possession  of  a  portion  of  the  land,  damages 
may  be  assessed  for  the  use  of  the  entire  tract.     (Ellis  v.  Jeans,  26 
Cal.  272.)     And  damages  may  be  awarded  on  a  default.     Dimick  v. 
Campbell,  31  Cal.  238. 

45.  Right  of  Possession. — To  maintain  ejectment,  a  right  of  entry 
and  possession  is  all  that  is  required.     A  contrary  doctrine  would  defeat 
the  policy  in  view  of  which  pre-emption  rights  were  conceived,  by  put- 
ting the  settlement  and   improvement  of  the   pre-emptioner  at  the 
mercy  of  any  stranger  who  might  choose  to  trespass  upon  them.     (To- 
land  v.  Mandell,  Cal.  Sup.  Ct.,  Jul.  T.,  1869.)    A  mere  naked  fee  does 
not  always  warrant  a  recovery  in  ejectment.     The  plaintiff  must  prove 
the  right  to  the  possession.     (Scales'  Treat.,  etc.,  Stat.  of  III.  214;  n 
777.  547;  13  HI.  251;  13  ///.  239;  25  777.  537;  13    Wis.  474;  35  In- 
265 ;  City  of  Cincinnati  v.  White,  6  Pet.  431.)     But  if  no  adverse  title  be 
shown,  recovery  may  be  had  without  showing  the  right  of  possession, 
or  an  entry,  or  a  right  of  entry  in  his  lessor.     (Wilkes   v.  Elliot,  5 
Cranch  C.  Ct.  6n.)     Even  if  the  deed  of  such  grantor  purporting  to 
convey  was  fraudulent.     (Gregg  v.  Sayre,  8  Pet.  244;  Wright  v.  Matti- 
son,  1 8  Hmv.  U.S.  50.)     The  right  to  the  possession  depends  upon  title. 
So,  when  the  vendor's  title  expires,  his  right  to  possession  also  expires. 
So  held  in  a  case  where  vendor  sued  to  eject  the  purchaser,  who  set  up 
title  under  the  Homestead  Law  to  Government  lands,  the  plaintiff  in  the 

15 


226  FORMS    OF    COMPLAINTS. 

action  claiming  right  of  possession  only.  If  the  defendant  was  estopped 
by  reason  of  the  contract  of  sale  from  setting  up  title,  the  plaintiff,  by 
admitting  he  had.no  title,  will  not  be  admitted  to  setup  the  estoppel  to 
show  that  his  admission  was  untrue,  as  it  would  then  be  an  estoppel 
•against  an  estoppel,  "which  settleth  the  matter  at  large."  Holden  v. 
Andrews,  Cat.  Sup.  Ct.Jul.  T.,  1869. 

46.  Seizin    in    Fee. — Under  an  allegation  of  seizin  in  fee  of 
the  premises,  plaintiff  may  recover,  if  he  show  any  interest  entitling  him 
to  possession.     (Stark  v.  Barrett,  15  Cal.  361.)  And  from  seizin  in  fee, 
and  of  possession  by  defendant  when  established,  the  law  implies  a 
right  to  the  present   possession.     (Payne  v.  Treadwell,  16  Cal.  220; 
Salmon  v.  Symonds,  24  Cal.  255.)  But  the  presumption  may  be  rebutted 
by  proof  of  an  equitable  title  in  another  of  the  character  to  carry  the 
right  of  possessson.     ( Willis  v.  Wozencraft,  2  2   Cal.  607.)     To  sustain 
an  action  of  ejectment,  an  averment  of  seizin  is  essential,  and  must  be 
alleged  to  have  been  within  the  time  limited  for  bringing  the  action. 
(Brockee  z'.  Crosby,  2  Paine  432 ;  Salmon  v.  Symonds,  24  Cat.  266.) 
A  variance  between  the  alleged   seizin   and   right   of  possession   of 
plaintiff,  and  the  date  of  the  conveyance  to  him,  is  immaterial.     Stark 
v.  Barrett,  15  Cal.  361. 

47.  Settlers    upon    Public   Land. — Persons  having  settled  in 
person  upon  the  public  land,  improved  it,  and  erected  dwelling  houses 
thereon,  are  lawfully  in  possession,  have  a  right  to  be  protected  in  it, 
and  if  ousted  may  sue  to  recover  it.     To  maintain  ejectment,  a  right  of 
entry  and  possession  is  all  that  is  required.    (Payne  v.  Treadwell,  5  Cal. 
310;  Yount  v.  Howell,  14  Id.  468;  Grady  v.  Early,  18  Id.  108;  Hub- 
bard  v.  Barry,  21  Id.  321;    Bullock   v.  Wilson,   2  Port.  (Ala.)  437; 
Masters  v.  Eustis,  3  Id.  391;  Goolib  v.  Smithson,  5  Id.  345;  cited  in 
Toland  v.  Mandell,  Cal.  Sup.  Ct.,July  T.,  1869.)     A  settler  on  public 
land,  if  ousted  after  the  lapse  of  a  reasonable  time  within  which  to 
improve  it,  can  recover  against  the  person  in  possession,  by  showing  an 
actual,  notorious,  prior  possession.    (Staininger  v.  Andrews,  4  Nev.  Rep. 
59.)    Where  he  shows  that  he  first  entered  upon  it,  marked  out  the  bound- 
aries, and  diligently  proceeded,  or  diligently  made  preparations  to  do  such 
acts  as  were  necessary  to  constitute  an  actual  possession,  he  will  be  entitled, 
even  without  showing  an  actual  possession,  to  recover  against  a  person 
subsequently  entering.     Staininger  v.  Andrews,  4  Nev.  59. 

48.  Settler,  Complaint  by. — Where  the  complaint  alleged  that  in 


FOR    REAL    PROPERTY.  227 

September,  1849,  plaintiff  settled  on  a  tract  of  land,  "the  same  being 
public  land  of  the  United  States;"  that  subsequently,  H.,  a  foreigner, 
built  a  house  and  occupied  a  portion  of  the  tract,  and  now  that  H.'s  ex- 
ecutor is  offering  the  same  for  sale,  and  plaintiff  prays  for  an  injunction, 
and  damages  for  the  occupation:  Held,\ha.\.  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action.  (O'Conner  v.  Corbett,  3 
Cal.  371.)  That  at  a  certain  time  the  party  received  a  deed  of  a  tract  of 
land,  and  from  that  time  forward  continued  in  the  actual,  exclusive, 
adverse,  and  notorious  possession,  and  had  the  same  protected  by  a  sub- 
stantial inclosure,  is  an  adverse  possession.  Vassault  v.  Seitz,  31 
Cal.  225. 

49.  Statute  of  Limitations. — The  Statute  of  Limitations  distin- 
guishes between  an  entry  made  without  any  right  or  claim  of  right,  and 
one  made  under  a  claim  or  color  of  title.     The  naked  disseisor  is 
regarded  with  the  greater  disfavor,  and  his  possession  is  strictly  to  the 
land  in  his  actual  exclusive  possession,  co-extensive  with  his  metes  and 
bounds.     ( Walsh  v.  Hill,  Cal.  Sup.jCt.,  Oct.  T.,  1869.)     Peaceable  and 
uninterrupted  possession  for  seven  years,  under  a  grant  or  deed  of 
conveyance,   gives    a    complete    title    to    a    person    in    possession. 
(Piles  v.  Bouldin,  n    Wheat.  325.)    And  a  naked  trespasser  for  seven 
years  is  not  a  bar  to  the  action.     (Patton  v.  Hynes,  i  Cooke,  357.)    But 
a  connected  title  need  not  be  shown.     (Green  v.  Neal,  6  Pel.  291; 
overruling  Patton  v.  Easton,  i    Wheat.  476;   Walker  v.  Turner,  9  Id. 
541;  and  Powell  v.  Harman,  Pet.  241.)    The  possession  of  one  having 
no  title,  but  holding  by  consent  of  another,  may  be  connected  with  the 
title  of  such  other.    (Mclver  v.  Reagan,  i   Cooke,  366.)     Under  the 
statute  of.  Kentucky,  an  adverse  possession  under  a  survey  previous  to 
patent,  may  be  connected  with  possession  under  the  patent.    (Walden  v. 
Gratz,   i    Wheat.  292.)      So,  a  party  entering  into  possession  of  land 
under  a  patent,  but  not  showing  a  paper  title  to  any  particular  portion, 
is  deemed  as  claiming  to  the  abuttals  of  the  patent  against  other  parties 
not  then  in  seizin  or  possession.     2  Marsh,  18;    i  Id.  376;    Clarke  v. 
Courtney,  5  Pet.  319. 

50.  Stipulation  by  Attorney. — If  the  attorneys  of  the  parties 
stipulate  in  writing  that  one  of  the  defendants  consents  to  a  reference, 
and  that  plaintiff  will  within  five  days  execute  to  defendant  a  deed  to  a 
part  of  the  land  in  controversy,  such  stipulation  gives  to  defendant  an 
equitable  title  to  the  land  named,  although  judgment  in  the  action  is 
for  the  plaintiff.     Killeyz>.  Wilson,  33  Cal.  691. 


228  FORMS    OF    COMPLAINTS. 

51.  Sufficient  Allegations. — Where  the  complaint  alleges  that 
the  plaintiff  "is  the  owner,  and  entitled  to  the  possession  of  the  land,' 
"that  defendant  is  in  possession  of  said  lot  of  land  without  any  right  or 
title  thereto,  and   against   the  will   and  without  the  consent   of   the 
plaintiff,"  that  said  defendant  wrongfully  withholds  the  possession  of 
said  lot  of  land  from  the  plaintiff,  it  is  sufficient.     That  the  plaintiff  is 
the  owner  is  in  substance  an  allegation  of  seizin  in  fee,  in  "  ordinary" 
instead  of  technical  language,  as  is  permitted  by  §  39  of  the  Practice 
Act.     Payne  v.  Treadwell,  16  Cal.  242,  244;    followed  in  Garwood  v. 
Hastings,  Cal.  Sup.  C/.,  July  T.,  1869. 

52.  Sufficient   Complaint. — Where  the  complaint  avers:  Frst, 
That  the  plaintiffs  are  the  owners  in  fee,  as  tenants  in  common,  of  the 
premises.     Second,  That  the  defendants  are  in  possession  of  the  same, 
and  withhold  the  possession  thereof  from  the  plaintiffs;  it  is  sufficient. 
All  beyond  these  averments  is  immaterial.     Payne  v.  Treadwell,  1 6  Cal. 
247;  Haight  v.  Green,  19  Cal.  113;  Ensign  v.  Sherman,  14  How.  Pr. 
439;  Walters.  Lockwood,  23  Barb.  228;  Landers  v.  Leavy,  16  How. 
Pr.  308. 

53.  Tax  Title. — No  title  can  be  derived  from  a  tax  sale  where  the 
tax  was  levied  against  the  buyer,  whose  duty  it  was  to  pay  it.     (McMinn 
v.  Whelan,  27  Cal.  300;  Kelsey  v.  Abbott,  13  Cal  609;  Moss  v.  Shear, 
25  Cal  38;  Coppinger  v.  Rice  33  Cal  425;  followed  in  Garwood  v. 
Hastings,  Cal  Sup.  Ct.Jul  T.,  1869. 

54.  Tenants  in  Common. — Tenants  in  common  are  in  posses- 
sion of  all  the  land  held  in  common,  and  each  and  every  one  of  them 
has  the  right  to  enter  upon  and  occupy  the  whole  of  the  common  lands, 
and  every  part  thereof.     (Carpenter  v.  Webster,  27  Cal.  545  cited  in 
Tevisz>.  Hicks,  Cal.  Sup.  Ct.,Jul.  T.,  1869.)    Their  occupation  shall  be, 
by  law  between  them,  in  common.   (2  Bouviers  Inst.  314.)  So,  one  tenant 
in  common  can  recover  possession  of  the  entire  premises,  as  against  a 
mere  trespasser.     (Treat  z>.  Reilly,  35  Cal.  129;  Hardy  v.  Johnston,  i 
Wall  U.S.  371;  Sharon  v.  Davidson,  4  Nev.  416;  also  Rowe  v.  Bac- 
cigalluppi,  21  Cal.  633.)     In  Tennessee,  the  practice  has  been  for  the 
tenants  in  common  in  ejectment  to  declare  in  a  joint  demise,  and  to 
recover  a  part  or  the  whole  of  the  premises,  according  to  the  evidence. 
(Poole  v.  Fleeger,  n  Pet.  185;  affirming  Fleeger  v.  Poole,  i  McLean, 
185.)     Tenants  in  common  cannot  join  in  an  action  of  ejectment  in 
Missouri.     Dube  v.  Smith,  i  Mo.  313;  Watherz/.  English,  Id.  746. 


FOR    REAL    PROPERTY.  2  29 

55.  Tenants  in  Common — Damages. — Where  a  party  after 
taking  possession  wrongfully,  became  a  co-tenant  of  the  plaintiff,  the 
plaintiff  cannot  recover  damages  for  the  period  while  he  was  wrong- 
fully in  possession  as  co-tenant.     (Carpentier  v.  Mendenhall,   28  Cal. 
484.)     But  a  tenant  in  common  who  is  ousted  by  his  co-tenant,  may 
recover  damages  from  the  time  of  the  ouster  according  to  his  right.    (Id.; 
see  2  Ohio  no.)     Where  the  plaintiff  is  owner  of  an  undivided  half 
interest,  and  the  defendant,  a  naked  trespasser,  purchased  an  undivided 
interest  after  the  commencement  of  the  action,  plaintiff  can  recover  the 
value  of  one  half  of  the  rents  and  profits,  including  those  resulting  from 
the  improvements  placed  on  the  land  by  the  defendant  during  the 
period  of  wrongful  possession.     Carpentier  v.  Mitchell,  29  Cal.  330. 

56.  Termination  of  Plaintiff's  Title  Pending  Suit.— Where 
the  plaintiff  shows  a  right  to  recover  at  the  time  the  action  was  com- 
menced, but  it  appears  that  his  right  has  terminated  during  the  pen- 
dency of  the  action,  the  verdict  and  judgment  shall  be  according  to  the 
fact;  and  the  plaintiff  may  recover  damages  for  withholding  the  prop- 
erty.    (Cal.  Pr.  Act,  256;  Moore  v.  Tice,  22  Cal.  513.)     This  provi- 
sion of  the  statute  applies  to  all  cases  where  the  plaintiffs  title  from 
any  cause  ceases  to  exist  before  trial,  and  is  not  confined  to  cases  in 
which  the  title  expires  by  limitation.     (Lang  v.  Wilbraham,  2  Duer, 
171.)     The  death  of  the  wife,  after  suit  brought  by  the  husband  for  the 
homestead,  defeats  the  action.     (Gee  v.   Moore,  14  Cal.  472.)     But  the 
sale  of  the  premises  during  the  action  is  but  a  transfer  of  the  cause  of 
action.     (Moss  v.  Shear,  30  Cal.  469.)    Though  where  plaintiff's  title  ex- 
pired before  judgment,  if  he  is  entitled  to  mesne  profits  he  may  have  judg- 
ment so  as  to  enable  him  to  recover  them.    Jackson  v.  Davenport,  18 
Johns.  295. 

57.  Title. — A  plaintiff  must  recover  on  the  strength  of  his  own 
title,  and  not  on  the  weakness  of  the  defendant's.     (Woodworth  v.  Ful- 
ton, i  Cal.  295;  Stanford  v.  Maugin,  30  Ga.  355;  Turner  v.  Albridge, 
i  Me  All.  229;  Sahler-  v.  Signer,  37  Barb.  329;'  Brady  v.  Hennison,  8 
Bosw.  528;  State  v.  Stringfellow,  2 1  Kansas  2  63 ;  Seabury  v.  Field,  i  Me  All. 
i.)     And  upon  his  title  as  it  was  when  the  suit  was  commenced.     A 
subsequently  acquired  deed  will  not  aid  him.     (25  ///.  537;  i  Black. 
U.  S.  459;  35  ///.  265;  13  ///.  251.)     For  exceptions  to  the  maxim 
that  the  plaintiff  must  recover  upon  the  strength  of  his  own  title  and 
not  upon  the  weakness  of  his  adversary's,  see  (Macklot  v.  Dubrueil, 
9  Mo.  473.)     This  rule  has  no  application  to  mining  claims.     'Richard- 


230  FORMS    OF    COMPLAINTS. 

son  v.  McNulty,  24  Cal.  339.)  The  plaintiff  must  show  title  in  himself 
before  the  ouster  laid  in  the  complaint.  (Buxton  v.  Carter,  1 1  Mo.  481.) 
A  legal  subsisting  title  outstanding  in  another  is  inconsistent  with  the 
title  in  the  plaintiff,  and  must  defeat  him.  See  Puterbaugh's  PL  &  Pr. 
(HI.);  citing  23  III.  75;  4  Gilm.  15;  159  ///.  540:  25  ///.  277. 

58.  Title   and  Prior  Possession. — Where  a  party  relies   on 
documentary  title  and  prior  possession,  if  he  fail  in  the  former  he  may 
still  rely  upon  the  latter.     The  failure  to  prove  the  proper  title  does  not 
impair  the  just  force  and  effect  of  the  possession.     Morton  v.  Folger, 
15  Cal.  275. 

59.  Title,  Allegations  of. — The  title  of  the  plaintiff  is  the  ultimate 
fact,  the  fact  in  issue  upon  which  the  recovery  must  be  had  in  ejectment. 
Marshall  v.  Shafter,  32   Cal.  176;  Payne  v.  Treadwell,  16  Cal.  243.) 
And  must  be  alleged  in  the  complaint.     (Bass  v.  Steele,  3  Wash.  C.  Ct. 
381;  Gray  v.  James,  Pet.  C.  Ct.  476.)     It  may  be  averred  in  general 
terms,  but  if  he  attempts  to  set  forth  a  specific  deraignment,  he  must  aver 
every  fact  required  to  be  proved  in  order  to  recover.     (Castro  v.  Rich- 
ardsorv,  18   Cal.  478.)     And  he  will  be  confined  in  the  proof  to  his 
pleadir%.     (Eagan  v.  Delaney,  16  Cal.  85;  Coryell  v.  Cain,  Id.  567.) 
An  allegation  that  on  a  day  named  the  plaintiff  "was  possessed  of" 
certain  lands  therein  described,  which  said  premises  the  plaintiff  claims 
in  fee  simple  absolute,  is  an  allegation  of  title  in  fee  simple  absolute. 
(Marshall  v.  Shafter,  32  Cal.  176.)     The  allegation  of  possession  at  the 
time  of  the  ouster  complained  of  is  a  sufficient  allegation  of  title. 
(Hutchinson  v.  Perley,  4  Cal.  33;  approved  in  Winans  v.  Christy,  Id. 
78;  Sacramento  V.  R.R.  v.  Moffatt,  7  Id.  579;  Naglee  v.  Macy,  9  Id. 
427.)     So,  an  averment  of  prior  possession  and  ouster  are  sufficient. 
Boles  v.  Cohen,  15  Cal.  150;  Norris  v.  Russel,  5  Cal.  249. 

60.  Title,  Equitable. — Ejectment  cannot  be  maintained  upon  an 
equitable  title.     (O'Connell  v.  Dougherty,  32  Cal.  458;  Seaton  v.  Son, 
32  Cal.  481.)     A  mere  equitable  title  to  land  does  not  enable  the  owner 
to  maintain  an  action  to  recover  possession   thereof.     Although  the 
Code  (N.  Y.)  has  abolished  the  distinction  between  actions  at  law  and 
suits  in  equity,  so  far  as  regards  forms,  the  rules  by  which  the  rights  of 
parties  are  to  be  determined  remain  unchanged;    and,  in  an  action 
against  a  stranger  in  possession,  the  plaintiff  can  only  recover  on  his 
legal  title.     (2  T.  R.  684;  5  East.  132;  2  Johns.  221;  /</.  84;  ^Denio, 
225;  Peck  v.  Newton,  46  Barb.  173;  Carson  v.  Boudinot,  2  Wash.  C. 
Ct.  33;  Hickey  v.  Stewart,  3  How.  U.  S.  750;  Agricult.  Bk.  of  Miss.  v. 


FOR    REAL    PROPERTY.  23! 

Rice,  4  Id.  225;  Watkins  v.  Holnan,  16  Pet.  25.)     And  a  legal  title 
must  be  shown.     Fenn  v.  Holme,  21  How.  Pr.  481. 

61.  Title  Derived  through  a  Firm. — In  deriving  title  through 
a  firm  who  are  not  parties,  it  is  not  necessary  to  set  out  their  names. 
Cochran  v.  Scott,  3  Wend.  229. 

62.  Title  by  Sheriff's  Deed.— The  sheriff  is  empowered  by 
law  to  convey  by  deed  to  the  purchaser,  under  an  execution,  all  the 
right,  title,  interest,  and  estate  of  the  defendant  (4  Scam.  531),  as  fully 
as  the  defendant  himself,  or  an  attorney  empowered  by  him  for  that 
purpose,  could  have  done.     The  officer  in  fact  acts  as  such  attorney, 
appointed  for  that  purpose  by  law.     (See  Dodge  v.  Walley,  22  Cal.  224; 
McDonald  v.  Badger,  23  Cal.  399;  Lessee  of  Cooper  v.  Galbraith,  3 
Wash.  C.  Ct.  550;  Blood  v.  Light,  Cal.  Sup.  Ct.  Jul.  T.,  1869.)     As  to 
recitals  in  sheriff's  deed,  see  (Donahue  v.  McNulty,  24  Cal.  417;  Hihn 
v.  Peck,  30  Id.  287.)     As  to  title  conveyed  by  such  deed,  see  Blood  v. 
Light,  Cal.  Sup.  Ct.,  Jul.  T.,  1869,  and  cases  there  cited. 

63.  Title   Subsequently  Acquired. — A  party  may  have  two 
suits  against  the  same  defendant,  if  the  second  is  brought  on  a  title 
acquired  after  the  commencement  of  the  first.     Vance  v.  Olinger,  27 
Cal.  358. 

64.  Title  under  Sheriff's   Sale. — Where  the  plaintiff's  com- 
plaint in  ejectment  averred  title  in  plaintiff  under  a  sheriff's  sale,  made 
by  one  sheriff,  and  a  deed  executed  by  his  successor:  Held,  that  the 
plaintiff  could  not  recover.     (Alderson  v.  Bell,  9  Cal.  315;  Kellogg  v. 
Kellogg,  6  Barb.  116;  Brewster  v.  Striker,  i  E.  D.  Smith,  321;  Town- 
shend  v.  Wesson,  4  Duer,  342  ;   and  see  Farmers'  Bank  of  Saratoga 
County  v.  Merchant,  13  How.  Pr.  10.)     The  plaintiff  having  a  sheriff's 
title  need  not  show  that  the  defendant  in  execution  had  title,  but  only 
that  he  was  in  possession  at  the  time  of  the  sale.     (Hartley  v.  Ferrell, 
9  Fla.  374.)     He  need  only  show  a  judgment,  execution,  and  a  sheriff's 
deed.     Sinclair  v.  Worthy,  i  Wins.  (N.C.)  No.  i,  114. 

65.  Two  Titles. — Where  one  enters  generally  under  two  titles, 
the  law  adjudges  that  he  entered  under  the  better  title  of  the  two.     Gard- 
ner v.  Sharp,  4  Wash.  C.  Ct.  609. 

66.  United  States  Courts. — The  petitory  action  in  the  United 
States  Courts  corresponds  with  the  action  of  ejectment  in  the  state  courts. 
7  How.  U.S.  846;  9  Pet.  632;  Gilmery.  Poindexter,  10  How.  U.S.  257. 


232  FORMS    OF    COMPLAINTS. 

67.  Value. — Where   the  value  of  the  matter  in  dispute  is  not 
averred  in  the  complaint,  evidence  cannot  be  given  of  it  by  the  defend- 
ant.    (Lanning  v.  Dolph,  4    Wash.  C.  Ct.  624.)      Contra,  when  the 
pleadings  do  not  state  the  value  of  the  property  in  controversy,  the 
value  may  be  shown  at  the  trial.     Beard  v.  Federy,  3  Wall.  U.  S.  488. 

68.  Vendor   of  Land. — When  a  vendor  elects  to  rescind  the 
contract  of  sale  for  non-compliance  of  its  terms,  he  may  bring  ejectment 
against  the  purchaser.     (Dean  v.  Comst6ck,  32  ///.  173.)     Where  a 
party  acquires  possession  of  land  under  an  executory  contract  of  pur- 
chase, the  vendor  cannot  maintain  ejectment  until  after  notice  to  quit, 
or  demand  of  possession.     (14  ///.  qi;  32  ///.  173.)     And  after  the 
purchaser  has  perfected  his  title  to  the  lands  in  pursuance  of  the  con- 
tract, an  action  will  not  lie  against  him  by  a  grantee  of  the  sheriff,  under 
a  judgment  against  the  devisee  of  the  vendor.     (Smith  v.  Gage,  41 
Barb.  60.)     But  where  he  enters  holding  a  bond  for  a  deed  of  the  usual 
form,  and  fails  to  comply  with  the  terms  of  the  purchase,  the  vendor 
may  rescind  the  contract  and  maintain  ejectment.     32  ///.  173. 

69.  Vermont. — For  cause  of  action,  a  party  who  would  avail  him- 
self of  the  bar  of  the  Statute  of  Limitations,  must  show  that  there  had 
been  an  actual  ouster  by  some  person  entering  into  possession  adversely 
to  the  plaintiff.     A  mere  intruder  without  title  is  not  protected.      Society 
for  Propagation  v.  Town  of  Pawlet,  4  Pet.  480;  Clarke  v.  Courtney,  5 
Id.  319. 

70.  When  the  Action  Lies. — A  lessor  for  years  may  maintain 
ejectment  if  the  rent  is  six  months  in  arrears.      (4  Geo.  2,  c.  28.)     And 
no  sufficient  distress  upon  the  premises.     This  statute  is  in  force  in  the 
City  of  Washington.      (Bradley  v.  Conner,  5  Cranch  C.  Ct.  615.)     As 
to  when  ejectment  may  be  brought  against  claimants  not  in  possession, 
see  (Harvey  v.  Tyler,  2  Wall.  329.)     Ejectment  will  not  lie  for  anything 
whereon  an  entry  cannot  be  made,  or  of  which  the  sheriff  cannot  deliver 
possession.     (Adams  on  Eject.  18;   I  Mees.  &  W.  210:   2  Barn.  &  Aid. 
652;  Child  v.  Chappel,  9  N.F.  246.)     But  it  will  lie  for  anything  at- 
tached to  the  soil,  of  which  the  sheriff  can  deliver  possession.     (Saxton 
v.  May,  1 6  Johns.  184.)     So  it  will  lie  for  a  room  in  a  building,  although 
the  walls  have  been  taken  down,  and  in  form,  character,  and  value,  the 
identity  of  the  premises  has  been  entirely  destroyed.     (Rowan  v.  Kelsey, 
2  Keyes,  594.)     It  will  lie  whenever  a  right  of  entry  exists.     The  thing 
claimed  should  be  a  corporeal  hereditament.     (Adams  on  Eject.  18.) 


FOR    REAL    PROPERTY.  233 

And  the  interest  should  be  visible  and  tangible,  -so  that  the  sheriff  may 
deliver  possession  to  the  plaintiff.  Id.;  18  Barb.  484;  Champlain  and 
St.  Lawrence  R.R.  Co.  v.  Valentine,  19  Id.  484. 

71.  When  Action  may  be  Maintained. — The  rule  that  the 
claimant  in  ejectment  must  recover  upon  the  strength  of  his  own  title, 
is  in  this  State  (California)  so  far  modified  that  a  plaintiff  may  recover 
upon  a  proof  of  a  possession  prior  to  that  of  the  defendants,  notwith- 
standing the  real  title  is  in  a  stranger.      (Hubbard  v.  Barry,  21  Cal. 
321;    approved  in  Richardson   v.  McNulty,  24   Cal.  448;    Harris  v. 
McGregor,  29  Cal.  129.)      On  a  title  to  land  by  estoppel,  ejectment 
may  be  maintained.     (Stoddard  v.  Chambers,  2  How.  U.S.  284.)     Or 
under  a  grant  accompanied  by  possession.     (Boyreau  v.  Campbell,  I 
Me  All.  519.)    Or  under  United  States  patent.     (Ballance  v.  Forsyth,  13^ 
How.  U.S.  1 8.)     In  Pennsylvania,  a  warrant  accompanied  by  payment 
of  the  purchase  money  and  a  legal  survey,  entitles  the  holder  to  sue  in 
ejectment.     3  Dal!.  425;  3  Wash.  C.  Ct.  81;  Penns  v.  Klyne,  i  Wash. 
C.  Ct.  207;    Dubois  v.  Newman,  4  Id.  74;    Vanhorn  v.  Chesnut,  2  Id. 
1 60;  Copley  v.  Riddle,  Id.  354. 

72.  When  Action  -will  not  Lie. — The  sale  of  lands  in  the 
City  of  San  Francisco,  by  a  portion  of  the  Board  of  Commissioners  of 
the  funded  debt,  does  not  pass  a  title  upon  which  ejectment  will  lie. 
(Leonard  v.  Darlington,  6  Cal.  123.)     Nor  will  a  deed  of  the  sheriff,  of 
premises  claimed  as  a  homestead,  at  an  execution  sale,  for  the  excess 
of  the  value  of  the  premises  over  five  thousand  dollars.     (Gary  v.  Esta- 
brook,  6  Cal.  457.)      Ejectment  does  not  lie  to  try  the  right  to  a  road 
or  right  of  way.     (Wood  v.  Truckee  T.  Co.,  24  Cal.  474;  see  Note  70; 
see  Adams  on  Eject.  1 8,  et  seq.)      The  holder  or  assignee  of  a  grant 
issued  by  a  California  Governor,  without  approval  by  the  Department, 
Assembly,  or  judicial  possession,  cannot  in  ejectment  recover  from  the 
confirmee  of  the   Federal  Government,  having  an  approved  survey. 
(Estrada  v.  Murphy,  19  Cal.  248.)     A  party  who  has  a  right  of  entry 
upon  lands,  and  who  has  entered  by  force  or  fraud,  cannot  be  turned 
out  of  possession  by  an  action  of  ejectment.     Dupuy  v.  Williams,  26 
Cal.  309. 


234  FORMS   OF    COMPLAINTS. 

JVo.  44%. 

ii.     Ejectment,    where   Damages   and  Rents   and  Profits  are.  Claimed. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That    on   the  ....    day    of ,  1 8 .  . ,  the 

plaintiff  was  the  owner,  and  seized  in  fee  [and  possessed, 
and  entitled  to  the  possession  of  ]  that  certain  tract  of 

land  situate  in  the ,  County  of ,  State 

of ,  described  as  follows,  to  wit:   [description 

of  property^ 

II.  That  while  the  plaintiff  was  such  owner,  and  so 
seized  and  possessed,  and  entitled  to  the  possession  of 
said  land  and  premises,  the. said  defendant  did,  on  the 
day  and  year  aforesaid,  without  right  or  title,  enter  into 
and  upon   the  same,  and  oust  and  eject  the  plaintiff 
therefrom,  and  ever  since  that  day  has   withheld,   and 
still  withholds  the  possession  thereof  from  the  plaintiff, 
to  his  damage  in  the  sum  of dollars. 

III.  That  the  value  of  the  rents  and  profits  of  the 
said    land   and    premises,    from   the    said  ....  day   of 

,  1 8 . . ,  and  while   the  plaintiff  has  been  ex- 
cluded therefrom,  is dollars. 

Wherefore  the  plaintiff  demands  judgment  against 
the  said  defendant: 

1.  For  the  restitution  of  said  land  and  premises. 

2.  For  the  sum  of dollars  damages  for 

the  withholding  thereof. 

3.  For dollars,  the  value  of  the  rents  and 

profits  thereof,  together  with costs  of  suit. 


FOR    REAL    PROPERTY.  235 

No.  443. 

iii.     The  Same — Alleging  Title  by  Descent. 
[TITLE.] 

The  plaintiff  complains  and  alleges: 

I.  That  one   A.  B.,  late  of ,  deceased,  was 

at  and  before  his  death  seized  in  fee  of  [describe  prem- 
ises^ ,  and  was  at  the  time  of  his  death  in  possession  of 
the  same. 

II.  That    on  the    ....  day    of ,   18.  .     at 

,  said   A.  B.  died   intestate,  leaving  surviving 

him  the  plaintiff,  his  sole  heir  at  law. 

III.  That  on  the  ....  day  of ,  18. .   [etc."], 

the  defendant  did  \allege  ouster  as  in  other  forms\. 

{Demand  of  Judgment, .] 


72.  Allegation  Setting  Forth  Title  by  Devise. — That  on 

the  ....  day  of ,  18 .  . ,  the  said  A.  B.  died,  having  by   his 

last  will  devised  to  the  plaintiff  the  said  premises,  which  will  has  been 
duly  proved  as  a  will  of  real  estate  in  the  Probate  Court  of  the  County 
of 

73.  Essential  Allegations. — A  decedent  claimed  and  exercised 
acts  of  ownership  over  a  tract  of  land  for  some  time  before  and  up  to 
his  death.    His  possession  descended  to  his  heirs  as  tenants  in  common. 
One  of  them*  who  was  also  executor  of  his  will,  directed  to  sell  the 
decedent's  land,  bought  the  land  from  a  third  person  claiming  to  hold  a 
perfect  title.     In  ejectment  against  him,  it  was  not  necessary  that  a 
tender  of  the  purchase  money  should  be  made  before  commencing 
suit,  as  defendant  claimed  in  opposition  to  the  trust.     Keller  v.  Amble, 
58  Penn.  410. 

74.  Heir  of  Devisee. — A  person  in  possession  of  land,  without 
other  title,  has  a  devisable  interest,  and  the  heir  of  his  devisee  can 


236  FORMS    OF    COMPLAINTS. 

maintain  ejectment  against  one  who  has  entered  on  the  land  and  can- 
not show  title  or  possession  prior  to  the  testator.  Asher  v.  Whitlock, 
Law.  Rep.  i  Q.B.i.)  An  averment  that  the  defendant's  ancestor  was 
in  his  lifetime  seized  in  fee,  and  in  possession  of,  etc.,  sufficiently  avers 
the  fact  of  title  in  him,  and  a  proof  of  grants  to  him  is  admissible  under 
it.  People  v.  Livingston,  8  Barb.  253. 

75.  Title. — The  above  is  a  sufficient  averment  of  title  of  ancestor. 
(People  v.  Livingston,  8  Barb.  253.)  As  to  allegation  of  heirships,  see 
(St.  John  v.  Northrup,  23  Barb.  25.)  An  allegation  in  the  complaint 
that  plaintiffs  are  the  sons  of  Joaquin  Castro,  and  have  been  in  posses- 
sion of  the  rancho  since  his  decease,  is,  in  the  absence  of  a  special 
demurrer,  a  sufficient  allegation  of  heirship.  Castro  v.  Armesli,  14 
Cal.  39- 

No.  444. 

iv.    Alleging  Title  by  Possession. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18 .  . ,  he 

was  possessed  of  the  \designate  property\. 

II.  That  while  so  possessed,  the  defendant,  on  the 
....  day  of ,  1 8 .  . ,  entered  thereon,  -and  with- 
holds the  possession  thereof  from  the  plaintiff. 

[Demand  of  Judgment.  \ 


76.  Abandonment. — Laying  off  land  into  town  lots,  selling  the 
same,  and  exercising  other  acts  of  ownership  over  them,  is  no  evidence 
of  abandonment,  but  taken  in  connection  with  previous  acts  of  owner- 
ship furnishes  additional  evidence  of  possession.  (Plume  v.  Seward,  4 
Cal.  94.)  Persons  in  casual  and  temporary  occupancy  of  an  island,  a 
part  of  the  public  domain,  engaged  in  the  pursuit  of  hunting,  fishing,  or 
gathering  the  eggs  of  wild  birds  deposited  there,  are  not  justified  in 
resisting  by  force  others  who  attempt  to  land  upon  it  to  engage  in  the 
same  pursuit.  People  v.  Batchelder,  27  Cal.  69. 


FOR    REAL    PROPERTY.  237 

77.  Actual  Possession. — By  actual  possession  is  meant  a  sub- 
jection to  the  will  and  dominion  of  the  claimant,  and  is  usually  evidenced 
by  occupation,  by  a  substantial  inclosure,  by  cultivation,  or  by  appro- 
priate use,  according  to  the  particular  locality  and  quality  of  the  prop- 
erty. (Coryell  v.  Cain,  16  Cal.  567.)  The  mere  taking  from  the  land 
a  portion  of  the  herbage  growing  thereon  is  not  sufficient  to  give  a  right 
of  possession.  (Steinback  v.  Fitzpatrick,  12  Cal.  295.)  A  complaint 
in  ejectment  averring  that  plaintiff  was  in  the  actual  possession  of  the 
premises  by  inclosure  and  cultivation;  that  defendant,  upon  a  certain 
day,  entered  upon  the  same,  and  ousted  the  plaintiff;  and  that  defendant 
is  still  in  possession,  is  sufficient.  (Godwin  v.  Stebbins,  2  Cal.  103; 
Leigh  Co.  v.  Indep.  Ditch  Co.,  8  Id.  323;  Boles  v.  Weifenback,  15 
Cal.  144;  Boles  v.  Cohen,  15  Cal.  151.)  The  possession  need  not  be 
by  the  claimant  personally,  but  possession  by  a  tenant  under  him  inures 
to  his  benefit.  (Gregg  v.  Forsyth,  24  How.  U.S.  179;  Gregg  v.  Tesson, 
i  Black.  150;  Dredge  v.  Forsyth,  2  Id.  563.)  What  is  actual  and  what 
constructive  possession  in  many  cases  must  be  a  question  for  the  jury. 
(O'Callighan  v.  Booth,  6  Cal.  63.)  One  in  actual  possession  may  rely 
on  his  possession  alone  until  the  opposite  party  shows  a  better  right. 
(Hawxhurst  v.  Lander,  28  Cal.  331.)  So,  one  in  actual  possession 
cannot  be  dispossessed  by  another  who  has  neither  title  nor  color  of 
title.  (Sunol  v.  Hepburn,  i  Cal.  254.)  Where  land  had  been  cultiva- 
ted for  two  years,  and  was  at  the  time  in  possession  of  an  agent:  Held 
conclusive  evidence  of  actual  possession.  (Moore  v.  Goslin,  5  Cal. 
266.)  Proof  of  possession,  however  short  will  entitle  a  claimant  to 
recover.  (Potter  v.  Knowles,  5  Cal.  87.)  So,  the  use  of  the  property 
for  a  series  of  years  without  direct  proof  of  the  character  of  the  fence, 
or  its  efficiency,  was  held  sufficient.  Hestres  v.  Brannan,  21  Cal.  423. 

78.  Form. — For  authorities  in  support  of  this  form,  consult  En- 
sign v.  Sherman,   13  How.  Pr.  35;    Warner  v.  Nelligar,   12  Id.  402; 
Mayor  of  N.Y.  v.  Campbell,  18  Barb.  156. 

79.  Line  of  Canal. — The  inclosure  of  the  ground  used  in  dig- 
ging a  canal,  not  being  necessary  for  the  work,  would  give  its  proprietors 
no  higher  rights;  nor  is  it  necessary  as  notice  to  those  who  have  received 
actual  notice  of  the  intended  line  of  the  canal.     Conger  v.  Weaver,  6 
Cal.  548. 

80.  Occupation. — The  word  "  occupation"  may  be  so  used  in  con- 
nection with  other  expressions,  or  under  peculiar  facts  of  a  case,  as  to 


238  FORMS   OF    COMPLAINTS. 

signify  a  residence.  But  ordinarily  the  expressions  "  occupation," 
"possessiopedis,"  "  subjection  to  the  will  and  control,"  are  employed  as 
synonymous  terms,  and  as  signifying  actual  possession.  Lawrence  v. 
Fulton,  19  Cal.  683. 

81.  Possession. — The  possession  of  real  property  is  of  two  kinds, 
the  one  constructive,  depending  upon  the  title  and  the  right  to  the  actual 
possession,  and  the  other  subsisting  in  the  actual  occupation.      (Ca- 
hoon  v.  Marshall,  25  Cal.  197.)     A  party  may  be  in  possession  of  land 
without  a  personal   residence   thereon,  or  without   having  personally 
cultivated  it.      (Plume  v.  Seward,  4   Cal.  94;  BarstoW  v.  Newman,  34 
Cal.  90.)     Possession  coupled  with  color  of  title  must  prevail  in  eject- 
ment, except  where  a  better  title  is  shown  in  the  defendants.      Winans 
v.  Christy,  4  Cal  70. 

82.  Possession   of  Part. — The  actual  possession  of  a  small 
portion  of  a  large  tract,  with  a  claim  of  title  to  the  whole,  will  not 
enable  a  party  to  maintain  a  possessory  action   under  Mexican  law, 
where  it  appears  on  the  face  of  the  papers  that  his  title  is  a  nullity. 
(Suriol  v.  Hepburn,   i   Cal.  254.)      Where  each  of   the  parties  has 
held  possession  of  distinct  parts  of  the  land  in  controversy,  the  party 
having  the  better  right  is  in  constructive  possession  of  all  the  land  not 
occupied  in  fact  by  his  adversary.     8  Cranch,  229;  Hun  tv.  WickliiTe, 
2  Pet.  201;  Barr  v.  Gratz,  4  Wheat,  213. 

83.  Possession,  Extent  of. — A  mere  intruder  is  limited  to  his 
actual  possession.     (SufLol  v.  Hepburn,  i  Cal.  254;  Wilson  v.  Corbier, 
13   Cal.   1 66;   Watkins  v.   Holman,   16  Pet.   25;    Mayor  of  N.O.   v. 
United  States,  10  Id.  662;  Clarke  v.  Courtney,  5  Pet.  319,  354.)     But 
one  entering  land  under  a  deed  or  title,  his  possession  is  co-extensive 
with  his  deed  or  title,  with  some  qualifications,  and  his  possession  is 
always  confined  to  his  actual  inclosure.     (Castro  v.  Gill,  5  Cal.  40; 
Green  v.  Liter,  8  Cranch,  229;  Barr  v.  Gratz,  4   Wheat.  213;  Ellicott  v. 
Pearl,  10  Pet.  412;  affirming  S.C.,  i  McLean,  206;  Prescott  v.  Nevers, 
4  Mass.  326.)     So,  where  a  party  takes  possession  of  part  of  a  tract,  under 
a  deed  of  conveyance  to  the  whole,  with  specific  boundaries,  and  at  the 
time  of  entry  no  one  is  holding  adversely,  such  possession  will  extend 
to  the  whole  tract  described  in  the  deed.     (Rose  v.  Davis,  n  Cal.  133; 
Boldwin  v.  Simpson,  12  Cal.  560;  Kile  v.  Tubbs,  23  Cal.  431;  Hicks 
v.  Colernan,  25   Cal.  122:  McKee  v.  Greene,  31  Cal.  418;  Ayers  v. 
Bensley,  32  Cal.  620.)     This  rule  is  not  limited  to  small  tracts  of  land 
such  as  are  usually  occupied  and  cultivated  for  farms.     (Hicks  v.  Cole- 


FOR    REAL   PROPERTY.  239 

man,  25  Cal.  122.)  And  it  extends  to  unrecorded  deeds,  with  respect 
to  those  at  least  who  have  actual  knowledge  of  the  terms  of  the  deed , 
and  the  grantee's  claim  under  it.  (Roberts  v.  Unger,  30  Cal.  676.) 
But  if  the  title  includes  no  definite  metes  and  bounds,  possession  will 
not  be  deemed  to  extend  beyond  the  actual  possession  proved.  (Fra- 
ser  v.  Hunter,  5  Cranch  C.  Ct.  470.)  And  a  grantee  entering  into 
possession  under  a  deed,  thereby  acquires  no  greater  possession  than  his 
grantee  had.  Bird  v.  Dennison,  7  Cal.  297. 

84.  Possession,  Insufficient. — Where  a,  party  takes  possession 
of  land,  and  incloses  it  with  a  fence  consisting  of  posts,  seven  feet  apart, 
and  one  board  six  inches  wide  nailed  on  to  the  posts,  and  not  sufficient 
to  turn  cattle,  and  the  land  is  not  cultivated,  such  possession  is  not  suf- 
ficient to  sustain  an  action  of  ejectment  as  against  a  party  in  possession 
of  a  part  of  the  jtract  under  a  deed  to  the  whole.     Baldwin  v.  Simpson, 
12  Cal.  560. 

85.  Possessory  Act. — A  party  relying  on  the  Possessory  Act  of 
the  State,  must  show  compliance  with  its  provisions,  and  can  then  main- 
tain an  action  for  the  possession  of  lands  occupied  for  cultivation  or 
grazing,   without  showing  an  actual  possession,  or  an  actual  inclosure 
of  the  whole  claim.     Coryell  v.  Cain,  16  Cal.  567. 

86.  Mineral  Lands. — The  allegation  of  possession  is  too  broad 
to  defeat  the  rights  of  a  person  who  has,  in  good  faith,  located  upon 
public  mineral  land  for  the  purpose  of  mining.     (Smith  v.  Doe,  1 5  Cal. 
100.)     In  ejectment  in  such  an  action,  plaintiff  averred  possession  of  a 
large  tract  of  land,  including  the  mining  ground  in  controversy,  and 
that  he  occupied  the  land  for  agricultural  and  mining  purposes,  without 
stating  that  any  use  was  made  of  the  particular  portion  held  by  defend- 
ants.    Plaintiff  could  not  recover  without  showing  such  an  actual  and 
meritorious  possession  a/id  occupancy  as  rendered  the  interference  of  the 
defendants    unjust    and    inequitable;    he   could    not   recover   on  the 
pleadings,  because  the  character  of  his  possession  did  not  appear — the 
complaint  not  averring  that  this  particular  portion  of  the  land  was  ever 
used  by  plaintiff  for  any  purpose  whatever.    (Smiths.  Doe,  15  Cal.  100.) 
Where,  in  a  suit  for  a  mining  claim,  plaintiff  in  his  complaint  states 
the  particular  facts  constituting  his   title,  and   on  that  title   seeks  a 
recovery,  and  the  answer  denies  such  title,  plaintiff  must  prove  his  title 
as  averred,  at  least  in  substance,  and  he  cannot,  against  defendant's 
objection,  recover  on  another  and  different  title.     Eagan  v.  Delaney, 
1 6  Cal.  87. 


240  FORMS    OF     COMPLAINTS. 

87.  Mineral  Lands,  Location    on. — One    party   may   locate 
grounds  for  fluming  purposes,  and  another  party,  at  the  same  time,  or  a 
different  time,  may  locate  the  same  ground  for  mining  purposes,  and  the 
two  locations  will  not  conflict.     O'Kieffe  v.  Cunningham,  9  Cal.  589. 

88.  Mining  Claims,  Appropriation  of. — The  usual  mode  of 
taking  up  mining  claims  is  to  put  upon  the  claim  a  written  notice  that 
the  party  has  located  it.  and  this  may  be  done  personally,  or  by  any  one 
for  him,  and  when  done  by  an  agent  the  title  rests  in  him  and*  the  agent 
cannot  subsequently  divest  it.     (Gore  v.  McBrayer,  18  Cal..  532.)     The 
acts  of  appropriation  are  regulated  by  mining  rules  and  local  custom 
which  when  not  in  conflict  with  the  constitution  and  laws  of  the  State 
shall  govern  all  decisions  in  an  action  for  mining  claims.      Cal.  Pr. 
Act,  §,621;    see  Hicks  v.  Bell,  3  Cal.  219;    Packers.  Heaton,  9  Cal. 
568;  Waring  v.  Crow,  n  Cal.  366;  English  v.  Johnston.  17  Cal.  107; 
Core  v.  McBrayer,  18  Cal.  582;  Prosser  v.  Parks.  Id.  47;  Coleman  v. 
Clements,   23  Cal.  245;  St.  John  v.  Kidd,  26   Cal.  263;  Morton  v. 
Solambo  G.  M.  Co.,  Id.  527;    T.  M.  Tunnel  Co.   v.  Stranahan,   31 
Cal.  387. 

89.  Mining  Claims,  Constructive  Possession. — The  entry 
on  a  part  of  a  mining  claim  under  a  deed  does  not  give  possession  of 
the  entire  claim,  unless  the  deed  contains  definite  and  certain  bound- 
aries which  can  be  traced  out  and  made  known  from  the  deed  alone. 
(Hess  v.  Winder,  30  Cal.  349.)     But  when  a  person  enters  bona  fide, 
under  color  of  title,  the  possession  of  part,  as  against  any  one  but  the  true 
owner,  is  the  possession  of  the  whole,  as  described  in  the  deed  or  lease. 
(Atwood  v.  Fricot,  17  Cal.  37.)     When  the  claim  is  defined,  and  the 
party  enters  in  pursuance  of  mining  rules  and  customs,  the  possession 
of  part  is  the  possession  of  the  whole.      (English  v.  Johnson,  17  Cal. 
107.)     But  the  boundaries  rhust  be  plainly  indicated  by  marks  or  mon- 
uments.    Hess  v.  Winder,  30  Cal.  349. 

90.  Mining  Claims,  Extent  of. — In  the  absence  of  mining 
regulations,  the  fact  that  a  party  has  located  a  claim  bounded  by  another 
raises  no  implication  that  the  last  location  corresponds  in  size  or  in  the 
direction  of  its  lines  with  the  former.    (Live  Yankee  Co.  v.  Oregon  Co., 
7  Cal.  40.)     The  quantity  of  ground  a  miner  may  locate  for  mining 
purposes  may  be  limited  by  the  mining  rules  of  the  district.     (Prosser 
v.  Parks,  18  Cal.  47.)     And  a  general  custom,  whether  existing  anterior 
to  the  location  or  not,  may  be  given  in  evidence;  but  a  local  rule  stands 


FOR    REAL    PROPERTY.  241 

on  a  different  footing,  and  cannot  be  introduced  to  affect  the  value  of  a 
claim  acquired  previous  to  its  establishment.  T.  M.  Tunn.  Co.  v. 
Stranahan,  20  CaL  198. 

90.  Mining    Claims,    how   Held. — A   mining  claim  on  the 
public  domain  may  be  held  either  by  actual  occupancy  and  the  exercise 
of  control  over  it,  by  indicating  its  boundaries  by  monuments,  or  works, 
or  by  occupancy  in  accordance  with  local  mining  customs.     (Hess  v. 
Winder,  30  Cat.  349.)     Where  the  location  is  made  both  by  posting 
notices  and  by  designating  fixed  objects  on  or  near  its  exterior  bound- 
aries,   witness    may  state  whether  the   location   made   included    the 
ground  in  dispute.     (Kelley  v.  Taylor,  23  Cat.   n.)     One  seeking  to 
hold  a  mining  claim  by  virtue  of  prior  possession  alone,  without  refer- 
ence to  local  mining  customs,  must   mark  out  his  boundaries  by  such 
distinct  physical  marks  as  will  indicate  to  any  one  what  his  exterior 
boundaries  are.     (Hess  v.  Winder,  30  CaL  349.)    But  fences  are  not 
necessary.     (English  v.  Johnson,  17  CaL  107. 

91.  Mining   Claims,  Ownership  of. — The  whole  course  of 
legislation  and  judicial  decisions,  since  the  organization  of  the  State,  has 
recognized  a  qualified  ownership  of  the  mines  in  private  individuals. 
(State  of  California  v.  Moore,  12  CaL  56.)    As  between  themselves  and 
all  other  persons,  except  the  United   States,  miners  in  possession  of 
claims   are  owners  of  the  same,  having  a   vested   right  of  property 
founded   on  possession  and  appropriation.      Hughes  v.   Devlin,    23 
CaL  501. 

92.  Mining  Claim — Possession  of. — Mining  ground  acquired 
by  entry  under  a  claim  for  mining  purposes,  the  bounds  being  distinctly 
defined,  accompanied  by  actual  occupancy  of  a  part  of  the  tract,  is 
sufficient  possession  to  maintain  ejectment  for  the  entire  claim,  although 
the  acts  of  appropriation  were   not  according  to  any  mining   rule. 
(Table  M.  T.  Co.  v.  Stranahan,  20  CaL  198.)     The  rule  applicable  to 
agricultural  lands  does  not  apply.     (English  v.  Johnson,  17  CaL  107.) 
A  miner  is  not  expected  to  reside  on  his  claim,  or  cultivate  it,  or  in- 
close it,  work  done  outside  the  claim,  in  reasonable  proximity  thereto, 
having  direct  relation  to  the  working  of  the  claim,  being  sufficient. 
^McGarrity  v.  Byington,  1 2  CaL  426.)    As,  for  example,  starting  a  tunnel 
a  considerable  distance  off,  to  run  into  the  claim  (English  v.  Johnson, 
17  CaL  107)  is  sufficient  possession.     Mining  claims  are  held  by  posses- 
sion, regulated  and  defined  by  usage  and  local  and  conventional  rules, 

16 


242  FORMS    OF     COMPLAINTS. 

i 

and  the  "  actual  possession  "  which  is  applied  to  agricultural  lands  and 
understood  to  be  in  possessio  pedis,  cannot  be  required  in  the  case  of 
a  mining  claim.  Atwood  v.  Fricot,  17  Cal.  37. 

93.  Mining  Claim,  Sale  of. — In  the  early  case  of  (McCarron 
r.  O'Connell,  7  Cal.  152),  it  was  held  that  a  bill  of  sale  not  under  seal 
was  insufficient  to  convey  a  mining  claim;  but  it  has  been  since  held 
that  instruments  conveying  mining  claims  need  not  be  under  seal. 
Draper  v.  Douglass,  23  Cal.  347;  St.  John  v.  Kidd,  26  Cal.  263.)    And 
the  bill  of  sale  is  the  best  evidence  of  the  transfer,  parol  evidence  of 
the  conveyance  being  inadmissible.     (Crary  v.  Campbell,  24  Cal.  634.) 
And  if  the  bill  of  sale  be  lost  or  destroyed,  its  loss  or  destruction  must 
be  proved  to  lay  the  foundation  for  secondary  evidence,  as  to  its  con- 
tents.    King  v.  Randlett,  33  Cal.  318. 

94.  Mining  Claims,  Verbal  Sale  of. — Where  the  grantor  is 
in  actual  possession  of  a  mining  claim,  he  may  convey  the  same  by  a 
verbal  sale,  accompanied  by  a  transfer  of  the  possession.     (Gatewood 
v.  McLaughlin,  23  Cal.  178;  Antoine  Co.  v.  Ridge  Co.,  Id.  219;  Cop- 
per Hill  Min.  Co.  v.  Spencer  (No.  2),  25  Cal.  18;    Patterson  v.  Key- 
stone Min.  Co.,  23  Cal.  575.)    This  was  before  the  Act  of  1860,  but 
since  the  Act  of  1860,  p.  175,  all  sales  of  mining  claims  must  be  in 
writing.     (See  Patterson  v.  Keystone  Mining  Co.,  30  Cal.  360),  where 
the  question  of  the  sufficiency  of  a  verbal  sale  under  the  Act  is  discussed. 
In  (Goller  v.  Fett,  30  Cal.  481),  it  was  held  that  a  verbal  sale,  even  if 
accompanied  by  delivery  of  possession,  does  not  pass  the  legal  title. 

95.  Mining  Regulations. — The  mining  regulations  of  a  district 
are  devised  for  the  purpose  of  enabling  persons  who  locate  claims  to 
hold  them  by  constructive  possession,  and  they  are  not  to  be  construed 
as  authorizing  a  person  to  invade  the  actual  possession  of  another,  on 
the  pretext  that  the  latter  has  neglected  to  perform  the  requisite  amount 
of  work,  or  has  failed  in  some  other  respect  to  comply  with  such  regu- 
lations; and  the  language,  "  open  and  subject  to  appropriation  under  the 
local  usages  of  the  district,"  does  not  necessarily  imply  that  a  mining 
claim  in  the  actual  possession  of  a  person  may  be  re-located  by  another 
person  on  his  failure  to  perform  the  acts  required  by  the  mining  regu- 
lations of  the  district     Bradley  v.  Lee,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 


FOR    REAL    PROPERTY.  243 

No.  445. 

v.   The  Same  —  Alleging  Prior  Possession.         • 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.    That  on  the  .....  day  of  .........  ,   1  8  .  .  ,  he 

was  lawfully  possessed,  as  owner  in  fee  simple,  of  that 
certain  tract  of  land,  situate  in  the  County  of  ........  , 

State   of    ........  ,    described    as   follows:     [describe 


II.  That  the  plaintiff  being  so  possessed,  the  defend- 
ant, afterwards,   on  the    ....  day  of  ........  ,    1  8  .  .  , 

entered  into  the  possession  of  the  demanded  premises, 
and  ousted  the  plaintiff,  and  now  unlawfully  withholds 
the  possession  thereof  from  the  plaintiff,  to  his  damage 
in  the  sum  of  ........  dollars. 

III.  That  the  value  of  the  rents,  issues,  and  profits 
of  the  said  premises,  from  the  said  ....  day  of  .......  , 

1  8  .  .  ,  and  while  the  plaintiff  has  been  excluded  there- 
from by  the  defendant,  is  ........  dollars. 

{Demand  of  Judgment^ 


96.  Actual  Possession. — The  plaintiff  who  claims  to  recover 
on  the  ground  of  prior  possession  alone,  without  color  of  title,  must 
show  an  actual  prior  possession;  and  if  he  shows  that  he  had  the  land 
protected  by  a  substantial  inclosure,  even  if  he  had  not  improved  or 
lived  on  it,  this  constitutes  an  actual  possession.     Polack  v.  McGrath, 
32  Cal.  15. 

97.  Compliance  with  Statue. — Where  a  plaintiff  seeks  to 
recover  upon  prior  possession,  and  does  not  show  a  compliance  with 
the  statute  concerning  possessory  actions  in  this  State,  he  can  only 


244  FORMS    OF     COMPLAINTS. 

recover  upon  proof  of  actual  bona  fide  occupation.     Murphy  v,  Wai 
lingford,  6  Cal  648. 

98.  Entry  upon  Lands. — One  who  enters  upon  a  tract  of  land 
where  thete  is  no  adverse  possession,  a  portion  of  which  is  uninclosed, 
claiming  the  whole  under  a  deed  describing  the  entire  tract,  will 
prevail  in  an  action  against  one  who  enters  subsequently  upon  the 
uninclosed  part,  showing  color  of  title  merely.  Hicks  v.  Coleman, 
25  Cal.  122. 

•  99.  Form. — As  to  form  in  ejectment,  see  (Payne  v.  Treadwell, 
1 6'  Cal.  220.)  Other  authorities  in  support:  Walter  v.  Lockwood, 
23  Barb.  228;  S.C.,  4  Abb.  Pr.  307;  People  v.  Mayor  of  N.Y.,  28 
Barb.  240;  S.C.,  8  Abb.  Pr.  7;  Ensign  v.  Sherman,  14  How.  Pr.  439; 
Caperton  v.  Schmidt  26  Cal.  479.. 

100.  Presumption. — Where  two  parties  rely  upon  possession 
solely,  as  proof  of  title,  the  presumption  of  ownership  is  in  favor  of  the 
first  possessor.     (Potter  v.  Knowles>  5  Cal.  87.)     And  where  title  to 
land  rests  in  possession  only,  the  prior  possessor  has  the  better  title. 
Ayres  v.  Bensley,  32  Cal.  620. 

101.  Prior  Possession. — Prior  possession  will  prevail  in  eject- 
ment over  a  subsequent  one,  obtained  by  mere  entry,  without  any 
lawful  right.      (Buckner  v.  Chambliss,  30  Ga.  652.)      A  locator  on 
public  land,  who  shows  that  he  first  entered  upon  it,  marked  out  the 
boundaries,  and  diligently  proceeded  to,  or  diligently  made  preparation 
to  do  such  acts  as  were  necessary  to  constitute  an  actual  posession,  will 
be  entitled,  even  without  showing  an  actual  possession,   to  recover 
against  a  person  subsequently  entering.     (Stain inger  v.  Andrews,   4 
Nev.  Rep.  59.)     Where  the  plaintiff  has  documentary  title,  aided  and 
accompanied  by  possession,  and  the  defendant  is  a  mere  trespasser,  the 
plaintiff  is  entitled  to  recover  on  prior  peaceable  possession  alone.    (16 
Pet.  i;  1 8  How.  U.S.  497;  14  Hmv.  U.S.  281;  Grady  v.  Early,  i  Cal. 
18;  Id.  421.)     Possession  isprima  facie  evidence  of  title.    Hutchinson 
v.  Perley,  4  Cal.  33;  Hutchinson  v.  Perley,  Id.  67;  Winans  v.  Christy, 

'  Id.  70;  Bequette  v.  Caulfield,  Id.  278. 

102.  Prior  Claim  to  Water. — Possession  or  actual  appropria- 
tion is  the  test  of  priorty  in  all  claims  to  the  use  of  water,  where  such 
cJlaims  are  dependent  upon  the  ownership  of  the  land  through  which 
the  water  flows.     Kirrxball  v.  Gearhart,  12  Cal.  27 


FOR    REAL    PROPERTY.  245 

103.  Prior  Possession  of  Grantor. — If  one  who  has  not  been 
in  the  actual  possession  of  land  claims  title  on  the  ground  of  prior  pos- 
session, he  must  not  only  show  the  conveyances  of  his  grantors,  but 
must  show  that  they  were  in  actual  possession  and  occupation  of  the 
land.     Borel  v.  Rollins,  30  Cal.  408;  Lawrence  v.  Fulton,  19  Cal.  683. 

104.  Title    by  Prior   Possession. — Actions  of  ejectment  do 
not  affect  the  title  to  the  property,  but  the  possession.     (Long  v.  Neville, 
29  Cal.  131.)     It  is  confined  to  cases  where  the  claimant  has  a  posses- 
sory title,  or  a  right  of  entry  upon  the  lands.     (Payne  v.  Tread  well,  5 
Cal.  310.)    And  the  right  to  possession,  as  between  the  parties,  is  alone 
tried.     (Marshall  v.  Shafter,  32   Cal.  176.)     An  action  can  be  main- 
tained upon  any  title,  legal  or  equitable,  or  upon  an  instrument,  sealed 
or  unsealed,  which  entitles  plaintiff  to  the  possession  of  the  property  in 
dispute,  as  against  the  defendant;   but  this  refers  to  proceedings  in 
equity.     (Ortman  v.  Dixon,  13  Cal.  33.)     In  ejectment,  plaintiffs  may 
rely  on  prior  possession,  and  the  legal  title  is  not  necessarily  involved. 
(Grady  v.  Early,  18   Cal.  108.)     It   is  sufficient  evidence  of  title  to 
support  the  action.      (Nagle  v.  Macy,   9   Cal.  426.)    Title  therefore 
by  prior  possession  may  be  alleged,  but  he  must,  in  connection  there- 
with, allege  an  entry  and  ouster.     (Norris  v,  Russel,  5  Cal.  249;  Boles 
v.  Cohen,  15   Cal.   150;  Payne  v.  Treadwell,   16  Cal.  220.)     And  a 
continued  adverse  holding  by  the  defendant.     Boles  v.  Cohen,  1 5  Cal. 
150;  Garrison  v.  Sampson,  Id.   93;  Steinback  v.  Fitzpatrick,  12    Cal. 
295. 

105.  Title  by  Limitation. — Adverse  possession  for  five  years 
gives  a  title  to  the  land.     (Le  Roy  v.  Rogers,  30  Cal.  229;  Simpson  v. 
Eckstein,  22  Cal.  580.)     But  possession  for  five  years,  unless  it  is  either 
admitted  or  found  as  a  fact  to  be  adverse,  will  not  presume  a  title. 
(Sharp  v.  Daugney,  33  Cal.  505;  Stillman  v.  White  Rock  Manf.  Co.,  3 
Woodb.  &  M.  538.)     In  Illinois,  a  person  in  actual  possession  under 
claim  or  color  of  title  in  good  faith  for  seven  years,  and  during  all  that 
time  paying  all  taxes,  shall  be  adjudged  legal  owner.     (Russel  v.  Bar- 
ney, 6  McLean,  577;  compare  Wright  v.  Mattison,  18  How.  U.S.  50.^ 
When  parties  enter  without  title  or  claim  or  color  of  title,  such  occu- 
pation is  subservient  to  the  paramount  title,  as  title  must  be  somewhere. 
(i   Graff.  605;  Sharp  v.  Daugney,  33  Cal.  505;  Harvey  v.  Tyler,   2 
Wall.  U.S.  328.)  As  to  the  Rule  in  Connecticut,  see  (Stillman  v.  White 
Rock  Manf.  Co.,  3    Woodb.  &  M.  538.)     In  Delaware,  an  action  of 
ejectment   cannot   be   maintained   against  a  mere  trespasser  on  the 


246  FORMS    OF     COMPLAINTS. 

ground  of  possession  alone,  unless  the  possession  has  continued  twenty 
years.  (Jefferson  v.  Howell,  i  Houst.  178.)  For  the  Statutes  of  tLim- 
itation  of  the  various  states,  see  Adams  on  Ejectment,  p.  43,  et  seq. 


No.  446. 

vi.    By  the  Tenant. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  one  A.  B.  is  the  owner  in  fee  simple  of  a 

piece  of  land  in  the  Township  of ,  County  of 

,  bounded  as  follows:  [describe  the  land.~\ 

II.  That  on  the day  of ,  1 8 .  . ,  the 

said  A.  B.  let  the  said  premises  to  plaintiff,  for 

years,  from 

III.  That  the  defendant  withholds  the  possession 
thereof  from  the  plaintiff. 

[Demand  of  Judgment. ,] 

106.  Action  Will  not  Lie. — In  an  action  of  ejectment,  if  the 
plaintiff  count  upon  a  lease  to  himself  from  a  person  whom  the  evidence 
shows  to  have  been  dead  at  the  time,  it  is  bad.     Connor  v.  Brady,  i 
Haw.  U.S.  211. 

107.  Expired  Lease. — Where  the  lease  under  which  ejectment 
is  brought  has  expired  before  trial,  no  recovery  can  be  had  without 
amendment.     (Roe  v.  Doe,  30  Ga.  608:)     Land  was  conveyed  in  fee, 
reserving  a  rent  charge  with  a  right  of  re-entry  for  non-payment.     The 
grantor  died,  leaving  six  heirs.     Held,  that  one  of  said  heirs  could  main- 
tain ejectment  for  one-sixth  of  said  lands  for  non-payment  of  rent, 
without  joining  the  others.     Cruger  v.  McClaughry,  51  Barb.  642. 

108.  Personal  Representatives. — The  personal  representatives 
of  a  lessee  for  years,  or  his  assignee,  have  an  estate  in  the  land,  and  are 
entitled  to  its  possession,  and  may  maintain  ejectment.     (  Williams  on 
Ex.  748;  4  Co.  95;  i    Ventr.  30;  3   T. R.  13;  Roscoe  on  Actions,  545; 


FOR    REAL     PROPERTY.  247 

1 6  Eng.  Com.  L.  R.  115;  Mosher  v.  Yost,  33  Barb.  277.)  A  plaintiff 
in  ejectment,  who  claims  under  two  leases,  cannot  recover  when  one 
lessor  has  conveyed  his  legal  title  and  the  other  lessor  is  barred  by  a 
former  recovery.  Dearmond  v.  Roe,  30  Ga.  632. 

109.  Possession  by  Tenant. — A  party  entering  under  a  lease 
with  bounds,  or  under  a  deed,  gains  a  possession  only  to  the  extent  of 
the  boundaries  of  the  lease  or  deed.  Where  the  tenant  is  settled  on  a 
patent  with  intent  to  gain  possession,  without  limits  or  bounds,  it  was 
held  that  the  landlord's  possession  thereby  obtained  extended  to  the 
lines  of  the  patent.  (Lee  v.  McDaniel,  i  A.  K.  Marshall,  234;  Owings 
v.  Gibson,  2  Id.  515.)  But  an  alienee  entering  upon  lands  with  bounds 
gains  a  possession  only  to  the  extent  of  his  bounds.  (Mawry  v.  Waugh, 

1  A.K.Marshall,  452;  Owings  v.  Gibson,  2  Id.  515;  Jones  v.  Chiles, 

2  Dana,  25;   Wickliffe  v.  Ensor,  9  B.  Monr.   258.)      If  the   landlord 
himself  enters  and  is  ousted  by  an  intruder,  he  may  recover  to  the 
boundaries  of  his  deed,  while  the  tenant,  if  ousted,  can  recover  only  to 
the  boundaries  of  his  lease.      Walsh  v.  Hill,  Cal.  Sup.  O.,  Oct.  T., 
1869. 


No.  447. 

vii.    Form  in  Ejectment  tinder  the  Oregon  Code. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is  [and  for  five  years  last  past  has  con- 
tinually been]  the  owner  in  fee  of  the  parcel  of  land 
situated  in  said  County,  known  and  described  as  Lot .... 

in  Block  . . . . ,  in  the  City  of ,  in  said  County 

and  State,  and  is  entitled  to  the  possession  thereof. 

II.  That   said  defendant  wrongfully  withholds  [and 
for  one  year  and  three  months  last  past  has  continued 
wrongfully  to  withhold]  the  same  from  him,  said  plaintiff, 

to  the  said  plaintiff's  damage  in  the  sum  of 

dollars. 

[  Dema  nd  of  Judgment.  ] 


248  FORMS    OF     COMPLAINTS. 

110.  Oregon. — The  Practice  Act  of  Oregon  specially  directs  the 
substance  of  the  complaint  in  actions  for  the  "  recovery  of  the  posses- 
sion of  real  property."  (Oregon  Code,  p.  226.)  Oregon  Code,  §  315, 
is  as  follows:  "The  plaintiff,  in  his  complaint,  shall  set  forth  the  nature 
of  his  estate  in  the  property,  whether  it  be  in  fee,  for  life,  or  for  a  term 
of  years,  or  for  whose  life,  or  the  duration  of  such  term,  and^hat  he  is 
entitled  to  the  possession  thereof,  and  that  the  defendant  wrongfully 
withholds  the  same  from  him,  to  his  damage,  for  such  sum  as  may  be 
therein  claimed;  the  property  shall  be  described  with  such  certainty  as 
to  enable  the  possession  thereof  to  be  delivered,  if  a  necessary  recovery 
be  had."  The  donee  of  a  land  claim  may  maintain  an  action  under 
the  statute  for  the  recovery  of  real  property  at  least,  against  one  who 
shows  no  title  except  possession.  (Keith  v.  Cheeney,  i  Or.  285.)  A 
deed  unacknowledged  and  unrecorded  is  good  between  the  parties. 
(Moore  v.  Thomas,  i  Or.  201.)  And  a  recorded  conveyance  of  real 
estate  not  vitiated  by  fraud,  will  have  priority  in  all  cases  over  a  convey- 
ance not  recorded.  Moore  v.  Thomas,  i  Or.  201. 


No.  448. 

viii.  Form   Under  the  New  York  Code — By   Widow,  for  Dower. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  the  late  A.  B.  was  husband  of  the  plaintiff 
at  the  time  of  his  death;  that  he  died  many  years  since; 
and  that  at  the  time  of  his  death,  and  for  many  years 
previous  thereto,  he  was  seized  in  fee  and  in  possession 
of  the  following  described  premises  [description]. 

II.  That  the  plaintiff  is  entitled  to  one  undivided 
third  part  thereof  for  her  life,  as  her  reasonable  dower. 

III.  That   the  defendant  Y.  Z.  is  in  possession  of 
said  premises,  and  wrongfully  and  unjustly  withholds 
from  plaintiff  the  possession  of  her  said  one-third  part 
thereof  as  her  dower. 


FOR    REAL    PROPERTY.  249 

• 

IV.  That  the  other  defendants  claim  an  estate  in 
fee  in  said  premises,  as  the  heirs  at  law  of  the  said  A.  B. ; 
that  they  are  the  legitimate  children  of  said  A.  B. 

Wherefore  the  plaintiff  demands  judgment. 

1.  That  she  recover  possession  of  one  undivided 
third  part  of  said  premises  for  her  own  life,  against  said 
defendant  Y.  Z. 

2.  That  she  be  declared  entitled  to  one  undivided 
third  part  thereof  for  her  own  life  against  all  the  other 
defendants. 

3.  That  she  recover  her  costs  of  action. 


NOTE. — This   form   is  applicable  to   the   State  of  New  York,  but 
not  to  this  State,  and  is  taken  from  Abbott's  Forms,  No.  624. 


COMPLAINTS — SUBDIVISION   SEVENTH, 

In   Actions    Concerning  Real  Property. 


CHAPTER  I. 

FORECLOSURE    OF    MORTGAGES    AND    LIENS. 

JVo.  449. 

• 

i.    Foreclosure  of  Mortgage — Common  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That    on    the  ....  day    of ,   1 8 .  . ,    at 

,  in  this  State,  the  defendant  made  his   prom- 
issory note,  bearing  date  on  that  day,  in  the  words  and 
figures  following,  to  wit:   [Copy  of  note.'] 

II.  That  the  said  defendant,  to  secure  the  payment 
of  the  said  principal  sum  and  the  interest  thereon,  as 
mentioned  in  said  note,  according  to  the  tenor  thereof, 
did  execute  under  his  hand  and  seal,  and  deliver  to  the 
said  plaintiff,  a  certain  mortgage  bearing  date  the  .... 
day  of ,  1 8 . . ,  and  conditioned  for  the  pay- 
ment of  the  said  sum  of dollars,  and  interest 

thereon  at  the  rate  and  at  the  time  and  in  the  manner 
specified  in  said  note,  and  according  to  the  conditions 
thereof;  which  said  mortgage  was  duly  acknowledged 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  25! 

and  certified,  so  as  to  entitle  it  to  be  reorded,  and  the 
same  was  afterwards,  to  wit,  on  the  ....  day  of 

,    1 8..,  duly  recorded  in  the  Office   of  the 

County    Recorder   of    County    of ,  in    Liber 

of  Mortgages,    page    ;  a   copy   of 

which  said  mortgage,  with  the  indorsements  thereon, 
is  hereunto  annexed,  marked  "Exhibit  A,"  and  made 
a  part  of  this  complaint. 

III.  That  the  interest  on  the  said  principal  sum  men- 
tioned in  said  promissory  note,  and  in  the  said  mort- 
gage, has  been  paid  down  to  the  ....  day  of , 

1 8..,  but  nothing  more   has  been   paid  thereon;  and 
the  principal  sum  mentioned    in  said  promissory  note 
and  mortgage,  together  with  interest  thereon  at  the 

rate  of  ....  per  cent,  per ,  from  the  ....  day 

of ,  1 8 . . ,  has  not  been  paid  by  said  defend- 
ant. 

IV.  That  the  plaintiff,  on  the  ....  day  of , 

1 8 .  . ,  or  thereabouts,  paid  on  said  premises  the  sum  of 

dollars,    for   taxes    duly   assessed    thereon, 

which  were  a  lien  and  incumbrance  upon  said  premises 
legally  attaching  thereto,  and  no  part  thereof  has  been 

repaid  to  said  plaintiff;  and  the  said  sum  of 

dollars,  taxes  so  paid  by  the  plaintiff,  and  interest  there- 
on at  the  rate  of  ....  per  cent,  per ,  from  the 

....  day  of ,  1 8 .  . ,  has  not  been  paid  by  the 

defendant  to  the  plaintiff. 

V.  That  the  plaintiff  is  now  the  lawful  owner  of  said 
promissory  note  and  mortgage. 

VI.  That  the  defendants  [here  insert  names  of  other 
claimants  and  incumbrancers\  have  or  claim  to  have 
some  interest  or  claim  upon  said  premises,  or  some  part 


252  FORMS    OF     COMPLAINTS. 

thereof  [as  purchasers,  mortgagees,  judgment-creditors, 
or  otherwise^,  which  interests  or  claims  are  subsequent  to 
and  subject  to  the  lien  of  the  plaintiff's  mortgage. 


Wherefore  the  plaintiff  prays  judgment  against  the 
said  defendant: 

1.  For  the  sum  of dollars,  with  interest  at 

the  rate  of  ....  per  cent,  per  ......  . . ,  from  the  .... 

day  of ,  1 8 . . ,  and  for  costs  of  suit. 

2.  That  the  usual  decree  may  be  made  for  the  sale 
of  said  premises  by  the  Sheriff  of  said  County,  accord- 
iug  to  law  and  the  practice  of  this  Court;   that  the  pro- 
ceeds of  said  sale  may  be  applied  in  payment  of  the 
amount  due  to  the  plaintiff,  and  that  said  defendant  and 
all  persons  claiming  under  him,  subsequent  to  the  exe- 
cution of  said  mortgage  upon  said  premises,  either  as 
purchasers,  incumbrancers,  or  otherwise,  may  be  barred 
and  foreclosed  of  all  right,  claim,  or  equity  of  redemp- 
tion in  the  said  premises,  and  every  p*art  thereof,  and 
that  the  said  plaintiff  may  have  judgment  and  execu- 
tion against  the  said  defendant  for  .any  deficiency  which 
may  remain  after  applying  all  the  proceeds  of  the  sale 
of  said  premises  properly  applicable  to  the  satisfaction 
of  said  judgment. 

3.  That  the  plaintiff  or  any  other  parties  to  the  suit 
may  become   purchaser  of  said  sale;  that   the   Sheriff 
execute  a  deed  to  the  purchaser;  that  the  said  pur- 
chaser be  let  into  the  possession  'of  the  premises   on 
production  of  the  Sheriff's  deed  therefor;  and  that  the 
plaintiff  may  have   such   other  or  further  relief  in  the 
premises  as  to  this  Court  may  seem  meet  and  equitable. . 


FORCLOSURE    OF    MORTGAGES    AND    LIENS.  253 

1.  Action. — In  California,  there  shall  be  but  one  action  for  the 
recovery  of  any  debt,  or  the  enforcement  of  any  right,  secured  by  mort- 
gage upon  real  estate  or  personal  property.     (Cal.  Pr.  Act,  §  246.)     It 
is  an  action  for  the  legal  determination  of  the  existence  of  the  lien, 
ascertainment  of  its  extent,  and  subjection  to  sale  of  the  estate  pledged 
for  its  satisfaction.     (Boggs  v.  Hargrave,   16   Cal.   559;  McMillan  v. 
Richards,  9  Cal.  365.)     The  proceeding  for  a  foreclosure  of  the  equity 
of  redemption  as  at  common  law,  is  unknown  to  our  system.     (Good- 
enow  v.  Ewer,  16  Cal.  461;  McMillan  v.  Richards,  9  Id.  365.)     The 
owner  of  the  mortgage  can  in  no  case  become  the  owner  of  the  prem- 
ises, except  by  purchaseupon  sale  under  judicial  decree,  consummated  by 
conveyance;  (Id.;}  the  surplus  after   a  decree  of  sale   going  to   the 
subsequent  incumbrancers  or  the  owner  of  the  premises.     (Id.}     And 
adverse  titles  to  the  premises  are  not  the  proper  subjects  for  determina- 
tion in  the  suit.     (San  Francisco  v.  Lawton,  18   Cal.   465.)     In  such 
cases  the  decree  should  reserve  the  right  of  the  adverse  claimants,  and 
so  limit  the  relief  awarded  as  to  protect  those  rights.     San  Francisco  v. 
Lawton,  21   Cal.  589;  Elias  v.  Verdugo,  27  Cal.  418;  see,  also,  Orde 
v.  McKee,  5  Cal.  515. 

2.  Allegation  of  Insurance  by  Plaintiff! — That  the  defend- 
ant [mortgagor]  did  not  keep  the  premises  insured,  but  on  the  con- 
trary [suffered  the  insurance  to  expire  on  the  ....  day  of ] ;  in 

consequence  whereof  the  plaintiff  .caused  them  to  be  insured  in  the 

Company,  of ,  for  the  term  of ,  from  the 

....  day  of ,  1 8 .  . ,  and  paid  therefor  the  premium  of 

dollars. 

3.  Inadequate  Security. — The  allegation  should  be,  that  the 
premises  are  an  inadequate  security  for  plaintiff's  demand.     Warner  v. 
Gouverneur,  i  Barb.  36. 

4.  Bond  for  Title. — At  common  law,  a  bond  for  title  is  in  effect 
a  mortgage.     The  legal  title  remains  in  the  vendor,  and  an  equity  rests 
in  the  vendee.     To  have  the  title  in  compliance  with  the  conditions, 
and  the  legal  title  and  equity  go  to  the  whole  estate,  including  fixtures, 
the  vendor  can  bring  an  action  in  ejectment,  breach  of  condition,  or 
foreclosure.     Merritt  v.  Judd,  14  Cal.  59. 

5.  Conditions  in  Mortgage. — The  usual  conditions  in  a  mort- 
gage contain  no  personal  obligation  to  pay  the  money.    The  contract  is 
simply  that  the  mortgagor  may  pay  the  sum  named,  which  will  revest 


254  FORMS   OF     COMPLAINTS. 

the  title  in  him,  or  if  he  fail  to  do  it  then  the  deed  becomes  absolute  at 
law,  though  in  equity  he  still  has  a  right  to  redeem,  which  right 
may  be  cut  off  by  a  foreclosure.  In  such  cases  the  mortgagee  is 
limited  to  the  land  for  payment,  and  if  that  is  not  sufficient  he  has  no 
further  security.  Drummond  v.  Richards,  2  Munf.  337;  4  Kent's 
Com.  136;  2  West.  Law  Jour.  216;  Nash's  Ohio  PI.  &  Pr.  347. 

6.  Conflicting  Claims. — The  purchaser  in  good  faith  and  for 
value  of  a  mortgage,  should  not  have  his  rights  prejudiced  or  postponed 
by  a  controversy  between  purchasers  of  the  mortgaged  premises,  con- 
cerning the  order  in  which  different  portions  of  the  premises  covered 
by  the  mortgage  shall  be  sold  under  the  foreclosure.  He  is  entitled 
to  judgment  for  foreclosure  of  sale,  without  reference  to  the  conflicting 
claims  of  owners  of  the  estate.  Smart  v.  Bement,  2  Keyes,  241. 

1.  Debt  Falling  Due  by  Installments. — If  the  debt  be  not 
all  due,  so  soon  as  sufficient  property  is  sold  to  pay  the  debt  due  the 
sale  shall  cease,  and  the  Court  may  order  more  sold  as  soon  as  more  of 
the  debt  falls  due.  (Cal.  Pr.  Act,  §  248.)  But  if  the  property  cannot 
be  sold  in  portions  without  injury  to  the  parties,  the  whole  may  be 
ordered  to  be  sold  in  the  first  instance,  and  the  entire  debt  and  costs 
paid,  with  a  proper  rebatement  of  interest.  (Id.}  When  a  debt  secured 
is  payable  in  installments,  the  mortgagee  or  his  assignee  has  a  right 
to  bring  an  action  to  foreclose  the  mortgage,  when  the  first  installment 
falls  due  and  is  not  paid.  (Grattan  v.  Wiggins,  23  Cal.  16.)  This  is 
also  the  practice  in  Ohio;  King  v.  Longworth,  7  Ohio,  231;  Lansings. 
Capron,  i  John.  Ch.  617;  Lyman  v.  Sale,  2  John.  Ch.  487.)  A  mort- 
gage given  to  secure  a  debt  payable  by  installments  may  be  foreclosed 
on  failure  to  pay  the  first  installment  when  due.  The  bill  in  such  case 
may  set  out  the  amounts  not  yet  due,  and  if  they  become  due  and  are 
not  paid  before  the  final  hearing  they  may  be  included  in  the  deed. 
Magrudersy.  Eggleston,  41  Miss.  284. 

•    ^ 

8.  Defeasance. — The  difference  between  an  absolute  deed  and  a 
mortgage  consists  in  the  defeasance  which  is  an  essential  part  of  the 
latter.  Whatever  may  be  the  effect  of  a  parol  defeasance  in  equity,  it 
is  cleat  that  it  cannot  at  law  operate  as  a  defeasance  of  a  deed  of  con- 
veyance. (Cutler  v.  Dickinson,  8  Pick.  386;  Flagg  v.  Mann,  14  Pick. 
467;  Scituate  v.  Hanover,  \6Pick.  222;  Flint  v.  Sheldon,  13  Mass. 
443;  Eaton  v.  Grew,  22  Pick.  526;  i  Wash.  Real  Prop.  480.)  In  a 
bill  in  equity  that  avers  a  deed  to  have  been  a  mortgage,  it  is  not  neces- 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  255 

sary  to  add  that  it  became  so  by  a  defeasance,  in  order  to  let  m  proof 
of  a  defeasance.  (Bently  v.  Phelps,  2  Woodb.  &  M.  403.)  Where  A. 
gave  to  B.  a  deed  of  bargain  and  sale  absolute  on  its  face,  and  as  a 
part  of  the  same  transaction,  B.  executed  and  delivered  to  A.  an  instru- 
ment in  writing,  in  which  he  stated  that  the  land  had  been  deeded  to 
him  as  security  for  the  payment  of  a  promissory  note,  and  the  instru- 
ment recited  that  moneys  received  from  the  sales  of  the  land  should  be 
credited  on  said  note,  and  that  when  the  note  was  fully  paid  by  the  pro- 
ceeds from  the  sales  of  the  land,  or  otherwise,  that  B.  should  redeed  to 
A.  all  the  lands  first  deeded  to  him,  excepting  such  as  may  be  sold,  such  a 
transaction  is  not  intended  as  a  mortgage  merely.  The  instrument 
relied  on  as  a  defeasance  amounts  to  a  declaration  of  trust,  and  shows 
the  intention  to  vest  the  title  in  B.  to  enable  him  to  sell  and  convey  the 
lands.  (Vance  v.  Lincoln,  Cal,  Sup.  Ci.,  Oct  T.,  1869.)  A  mortgage 
passes  the  title  to  the  mortgagee,  the  mortgagor  reserving  the  right  to 
defeat  the  transfer,  and  revest  the  title  in  himself,  by  the  performance 
of  an  express  condition  subsequent.  Brewster  v.  Hartley,  Cal.  Sup.  Ct., 
Jan.  T.,  1869. 

9.  Demand  and  Notice. — Against  a'subsequent  purchaser  the 
complaint  should  allege  that  the  mortgage  was  recorded,  or  that  de- 
fendant had  notice  when  he  purchased.    (Peru  Bridge  Co.  v.  Hendricks, 
1 8  Ind.  n.)     But  no  demand  is  necessary  where  a  mortgage  is  payable 
generally.     (Gillett  v.  Balcom,  6  Barb.  370;  Harris  v.  Mulock,  9  How. 
Pr.  402.)     The  English  practice  seems  to  be  different.     (  Whitw.  Eq. 
Prec.  395,  Note  7.)     Nor   is  guarantor  or  surety   entitled  to  notice 
before  commencing  suit.     Rushmore  v.  Miller,  4  Edw.  84. 

10.  Description  of  Land.— Section  fifty-eight  of  the  Practice 
Act,  relating  to  the  description  of  land,  does  not  apply  to  actions  for  the 
foreclosure  of  mortgages.     (Emeric  v.  Tarns,  6  Cal.  155.)     In  Indiana, 
the  mortgage,  etc.,  must  be  made  part  of  the  complaint.     (Hiatt  v. 
Goblt,  1 8  Ind.  (Kerr.)  494.)     But  in  California  it  is  sufficient  that  the 
complaint  refer  to  a  copy  of  the  mortgage  annexed,  for  a  description 
of  the  land.     Emeric  v.  Tarns,  6  Cal.  155. 

11.  Equity  Practice. — Under  the  former  procedure,  if  proceed- 
ings had  been  had,  the  complaint  should  show  that  the  remedy  at  law 
had  been  exhausted,  and  with  what  effect.     (Shufelt  v.  Shufelt,  9  Paige, 
137;  Lovett  v.  German  Reformed  Church,  12  Barb,  67;)  but  proceed- 
ings at  law  were  not  necessarily  a  bar  to  the  foreclosure.     (Williamson  v. 


256  FORMS    OF    COMPLAINTS. 

Champlin,  8  Paige,  70;  Suydam  v.  Bartle,  9  Id.  294.)  But  the  prac- 
tice is  different  now;  if  there  have  been  any  proceedings,  they  are  to  be 
set  up  in  defense.  Newton  v.  Newton,  12  Ind.  527. 

» 

12.  Essential  Averment. — The  complaint  should  state  that  the 

debt  was  due  at  the  time  the  action  was  commenced.  Maynard  v.  Tal- 
cott,  ii  Barl.  569;  Hare  v.  Van  Deusen,  32  Barb.  92;  Smith  v. 
.Holmes,  19  N.  Y.  271;  McCullough  v.  Colby,  4  Bos.  603;  Watson  v. 
Thibou,  17  Abb.  Pr.  184. 

13.  Estate  of  Deceased  Partner. — An  action  to  foreclose  a 
mortgage  made  by  a  deceased  partner  on  his  separate  estate,  may  be 
maintained  without  showing  in  the  complaint  that  the  firm  is  insolvent, 
or  that  mortgagee  has  pursued  his  remedy  upon  the  debt  against  the 
surviving  partner.     (Savings  and  Loan  Society  v.  Gibb,  21  Cal.  595.) 
In  such  case,  if  the  surviving  partner  be  executor  of  deceased,  he  may 
be,  as  an  individual,  made  co-defendant.     Id. 

14.  Executors  as  Parties  Defendant. — An  action  may  be 
maintained  against  an  executor  or  administrator  to  foreclose  a  mortgage 
upon  real  estate,  executed  by  his  testator  or  intestate,  although  the  debt 
secured  by  the  mortgage  has  been  presented  and  allowed.     Fallon  v. 
Butler,  21  Cal.  24. 

15.  Claims    against    Estate.— The   words  "claimant"   and 
"  claim "   are  synonymous   with   the  words    "  creditor "   and    "  legal 
demand."     (Gray  v.  Palmer,  9  Cal.  616.)     The  word   "claims"  does 
not  embrace  mortgage  liens,  but  has  reference  only  to  such  debts  or 
demands  against  decedent  as  might  have  been  enforced  against  him  in 
his  lifetime  by  personal  actions,  for  the  recovery  of  money  and  upon 
which  only  a  money  judgment  could  have  been  rendered.     (Fallon  v. 
Butler,  21  Cal.  24.)     The  word   "claim,"  when  it  speaks  of  claims 
against  an  estate,  is  broad  enough  to  include  a  mortgage.     (Ellis  v. 
Polhemus,  27  Cal.  350.)     Or  a  note  secured  by  a  mortgage.     Id. 

16.  Infant   Defendants.— If  there  are  infant  defendants,   the 
complaint  must  state  what  their  interest  is,  and  whether  it  is  paramount 
or  subordinate  to  the  interest  mortgaged.     Aldrich  v.  Lapham,  6  How. 
Pr.  129. 

17.  Injunction. — The  Court  may,  on  good  cause  shown,  restrain 
the  party  in  possession  of  the  mortgaged  premises  from  committing  in- 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  257 

jury  to  the  same  during  foreclosure.  (Cal.  Pr.  Act,  §  261.)  The 
remedy  in  such  case  is  only  preventive  and  not  exclusive  of  any  other 
remedy.  Sands  v.  Pfeiffer,  10  Cal.  258. 

18.  Interest,  Averment  of. — In  an  action  to  foreclose  a 
mortgage,  an  allegation  that  a  party  who  is  made  a  co-defendant  with 
the  mortgagor,  has  or  claims  to  have  some  interest  in  or  claim  upon 
the  mortgaged  premises,  is  sufficient,  without  averring  the  character  of 
the  interest.  (Anthony  v.  Nye,  30  Cal.  401.)  A  general  allegation  in 
the  complaint  that  such  parties  have  or  claim  to  have  some  interest  in 
the  property  is  all  that  is  required.  Poett  v.  Stearns,  28  Cal.  226. 

19.  Lien  of  Bondholder. — The  lien  of  a  bondholder  who  has 
lent  money  to  a  state,  on  the  pledge  of  certain  property  by  its  legislature, 
cannot  be  divested  or  postponed  by  a  subsequent  act  of  siich  legislature. 
(Trustees  of  Wabash  and  Erie  Canal  Company  v.  Beers,  2  Black.  U.S. 
448.)     Such  bondholder  is  protected  by  the  clause  of  the  Constitution 
of  the  United  States,  which  forbids  a  state  to  pass  a  law  impairing  the 
obligation  of  contracts.     (Trustees  of  Wabash  and   Erie  Canal  Co.  v. 
Beers,  2  Black.  U.S.  448.)     The  bondholder  does  not  lose  the  lien  of 
his  first  bonds  by  surrendering  or  exchanging  others  of  later  date  and 
of  inferior  security  for  canal  stock  or  other  state  pledges.     (Id.)     A 
suit  could  be  maintained  upon  the  coupons,  without  production  of  the 
bonds  to  which  they  had  been  attached.      (Lenox  County  v.  Aspinwall, 
21  How.  U.S.  539.)     A  coupon  payable  to  bearer,  cut  from  a  bond  and 
owned  by  one  party,  while  another  party  owns  the  bond,  is  still  a  lien 
under  a  mortgage  given  to  secure  the  bond,  and  entitles  the  holder  to 
share  pro  rata  in  the  proceeds  of  said  mortgage  on  foreclosure.     Miller 
v.  Rutland  and  W.  R.R.  Co.,  40  Vt.  399;  Arents  v.  Commonwealth,  18 
Grat.  (Va.)  750. 

20.  Material    Rights. — The    action    for  a   foreclosure   of    a 
mortgage  upon  real  property  is  not  brought  for  the  possession  merely 
of  the  property,  except  as  such   possession  may  follow  the  sheriff's 
deed,  but  to  subject  to  sale  the  title  which  the  mortgagor  had   at  the 
time  of  executing  the  mortgage,  and  to  cut  off  the  rights  of  parties  sub- 
sequently becoming  interested  in  the  premises ;    and   executors  and 
administrators  do  not  possess  the  title,  but  only  a  temporary  right  to  the 
possession.     Burton  v.  Lies,  21  Cal.  87. 

21.  Mortgage    a  Mere    Security. — A  mortgage  is  a  mere 
security  for  the  payment  of  money  or  the  performance  of  some  other 

17 


258  FORMS    OF    COMPLAINTS. 

act,  the  interest  passing  to  the  mortgagee  being  regarded  as  a  lien 
upon  the  real  estate.  They  pass  no  interest  or  estate  in  the  land 
except  the  lien,  and  the  lien  is  an  incident  to  the  debt  or  the  obligation 
which  is  thereby  secured.  (McMillan  v.  Richards,  9  Cal.  409.)  The 
definition  of  a  mortgage  as  known  at  common  law — an  estate  defeasible 
by  the  performance  of  a  condition  subsequent — does  not  correctly 
describe  that  instrument  as  it  is  interpreted  in  this  and  most  of  the 
other  states.  (Jackson  v.  Lodge,  Cal.  Sup.  Ct.,  Oct.  T.  1869.)  This 
doctrine  is  sustained  by  a  decided  preponderance  of  authority.  (Jack- 
son v.  Willard,  4  Johns.  41;  Hitchcock  v.  Harrington,  6  Johns.  290; 
Collins  v.  Terry,  7  Johns.  278;  Coles  v.  Coles,  15  Johns.  319;  Lane  v. 
Shears,  i  Wend.  433.)  And  is  established  in  this  State  by  statute. 
Cal.  Pr.  Act,  §  260.)  That  a  deed  absolute  on  its  face  may  be  proved 
to  have  been  intended  only  as  a  mortgage  is  settled  in  this  State. 
Vance  v.  Lincoln,  Cal.  Sup.  Ct.,  Oct.  T.  1869. 

22.  Parties. — All  persons  interested  in  the  mortgaged  premises 
should  be  made  parties;  otherwise  they  will  be  entitled  to  redeem,  even 
though  the  sale  was  made  on  the  oldest  lien.     (Nash's  PI.  and  Pr.  346; 
citing  Hughes  v.  Edwards,  9  Wheat.  489;  Madeiras  v.  Cattell,  7  Monr. 
475;  Potter  v.  Crandall,  i   Clark  Ch.  R.  119;  Renwick  v.  Macomb, 
Hopk.  277;  Reed  v.  Marble,  10  Paige.  409;  Haines  v.  Beach,  3  Johns. 
Ch.  459;  see  Vol.  i.,  "Parties,"  pp.  81,  106,  116.)     So,  an  assignee  is 
entitled  to  foreclose,  but  the  mortgagee  is  still  a  necessary  party;  but  if 
he  has  conveyed  the  legal  title  he  is  no  longer  a  necessary  party. 
(Newman  v.  Chapman,  2  Rand.  92;  McCuffey  v.  Finlay,  20  Ohio,  474.) 
Where  the  mortgagor   has  by  deed  conveyed  his  equity  to  another  he 
need  not  be  a  party.     (Bigelow  v.  Bush,  6  Paige  Ch.  343.)    A  subse- 
quent purchaser  of  land  mortgaged  is  a  proper  if  not  a  necessary  party 
to  a  foreclosure  suit,  and  if  the  complaint  be  faulty  in  praying  to  hold 
him  as  trustee  of  the  mortgage  on  accout  of  fraud  in  the  purchase,  such 
defect  cannot   be   reached  by  demurrer.     De  Leon  v.  Higuera,   15 
Cal.  495. 

23.  Parties  Supplemental. — If  the  real  holders  of  the  title  are 
not  parties  to  the  decree  of  foreclosure,  a  'court  of  equity  will  allow  them 
to  be  made  such  by  a  supplemental  complaint,  provided  application  be 
made  within  a  reasonable  time.     (Heyman  v.  Lowell",  23  Cal.  106.) 
It  is  only  such  as  have  an  interest  in  and  under  the  mortgagor  that  are 
necessary  parties.     The  suit  is  to  extinguish  his  title.     (Eagle  Fi.  Co. 
v.  Lent,  6  Paige  Ch.  635.)    The  action  may  be  maintained  by  one 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  259 

who  is  surety  for  the  mortgage  debt  to  compel  payment  or  foreclosure. 
Marsh  v.  Pike.  10  Paige,  595;  Lawrence  v.  Lawrence,  3  Barb.  Ch.  71; 
Cornell  v.  Prescott,  2  Barb.  16;  Vanderkemp  v.  Shelton,  n  Paige,  28. 

24.  Power  of  Sale  in  Mortgage. — Where  a  mortgage  contains' 
a  power  of  sale,  the  mortgagee  has.  his  election  to  foreclose  in  chancery 
or  to  sell  under  the  power.     (Cormerais  v.  Genella,  22  Cal.  116.)    Or 
the  mortgagor,  with  the  consent  of  the  mortgagee,  may  be  authorized 
to  sell  the  premises  to  pay  the  debt.     (Fogarty  v.  Sawyer,  17  Cal.  589.) 
The  legal  title  passess  by  the  sale  of  the  mortgaged  premises,  but  where 
the  mortgagee  becomes  the  purshaser  indirectly  by  having  the  premises 
bid  off  to  him,  the  sale  is  voidable  on  application  in  equity  by  the 
mortgagor.     (Blockley  v.  Fowler,  21  Cal.  326.)     A  deed  of  trust,  the 
trustee  not  being  the  creditor  but  a  third  party,  given  to  secure  a  note, 
and  authorizing  the  trustee  to  sell  the  land  at  public  auction,  and  execute 
to  the  purchaser  a  deed  of  the  same,  upon  default  of  paying  the  note  or 
interest  as  it  falls  due,  and  out  of  the  proceeds  to  satisfy  the  trust  gener- 
ally, and  to  render  the  surplus  to  the  grantor,  etc.,  is  not  a  mortgage 
requiring  judicial  sale.     Koch  v.  Briggs,  14  Cal.  256. 

25.  Receiver. — The  plaintiff  has  no  right  to  have  a  receiver  of 
rents  and  profits  appointed  during  litigation.      Guy  v.  Ide,  6  Cal.  99. 

26.  Record    and    Acknowledgment. — As  against  the  mort- 
gagor, the  allegation  of  record  and  acknowledgment  is  immaterial  and 
unnecessary,  nor  that  the  mortgagor  has  not  conveyed.    (St.  Mark's  Fire 
Ins.  Co.  v.  Harris,  13  How.  Pr.  95.)     Except  in  case  of  a  married 
woman.     Perdue  v.  Aldridge.  19  Ind.  (Kerr.)  290;  Culph  v.  Phillips, 
17  Id.  209. 

27.  Relief  in  Case  of  Default. — In  a  foreclosure  suit,  where 
judgment  is  taken  by  default,  the  decree  can  give  no  relief  beyond  that 
which  is  demanded  in  the  bill.     Raun  v.  Reynolds,  n  Cal.  14. 

28.  Sale    under    Statute    Foreclosure. — Where  the  agent 
employed    by   the   mortgagee    to    sell   property,   sold    it  at  a  time 
contrary   to   instructions    given   him,    and    for   something    less   than 
its  value:      Held,    that   the   purchaser  having  bought   in   good   faith 
without   knowledge   of    the   instructions,   the   courts   should   not   set 
aside  the  sale.      An  attorney  acting   in  such  transaction   might   be 
treated  as  acting  in  his  professional  character,  except  where  third  per- 
sons are  thus  affected.     (Leet  v.  McMaster,  51  Barb.  236.)    A  notice 


26O  FORMS    OF    COMPLAINTS. 

of  sale  on  a  statutory  foreclosure  need  not  specify  that  the  mortgage 
will  be  foreclosed.     Leet  v.  McMaster,  51  Barb.  236. 

29.  Remedy,  Extent  of. — The  party  on  a  bill  to  foreclose  a 
mortgage  is  confined  in  his  remedy  to  the  pledge.     Such  a  suit  is  not 
intended  to  act  in  personam.     It  seems  to  be  pretty  generally  admitted 
that  the  mortgagee  may  proceed  at  law  on  his  bond  or  covenant  at  the 
same  time  that  he  is  prosecuting  his  mortgage  in  chancery;  and  that 
after  foreclosure  he  may  sue  at  law  for  the  deficiency.    (Ld..Redesdale,  i 
Sch.  and  I^efr.    176;   13  Ves.  jr.    205;  Aylett  v.   Hill,   Dickens,   551; 
Took's  Case,  Id.  785;  2  Bro.  125;  Perry  v.  Barker.   13  Ves.  jr.  198; 
Dashwood  v.  Blythway,  i  Eq.  Cas.  Abr.  317.)     In  California,  however, 
judgment  may  be  rendered  for  the  amount  found  due  upon  the  per- 
sonal obligation  to  secure  which  the  mortgage  is  executed.     (Rollins  v. 
Forbes,  10  Cal.  299;  Rowland  v.  Leiby,  14  Id.  156;  Englundf.  Lewis, 
25  Cal.  337.)     Parties  are  at  liberty  to  adopt  the  course  pursued  under 
the  old  chancery  system,  and  take  a  decree  adjudging  the  amount  due 
upon  the  personal  obligation  of  the  mortgagor,  and  directing  a  sale  of 
the  premises,  and  the  application  of  the  proceeds  to  its  payment,  and 
after  sale  apply  for  the  ascertainment  of  any  deficiency  and  for  execu- 
tion for  the  same,  or  they  may  take  a  formal  judgment  for  the  amount 
due  in  the  first  instance.     Rowland  v.  Leiby,  14   Cal.  156;  Rowe  v. 
Tab.  M.  Wat.  Co.,  10  Cal.  441. 

30.  Right  of  Surety  by  Mortgage. — The   holders  of  the 
notes  might  subject  premises  mortgaged  by  D.  to  the  payment  of  the 
notes,  or  might  abandon  the  mortgage  and  subject  the  property  of  the 
principal  in  the  lands  of  the  mortgagor  to  the  payment  of  the  notes,  or 
they  might  have  the  property  mortgaged  to  secure  the  notes  sold,  the 
proceeds  applied  to  their  satisfaction,  and  if  any  balance  remained 
unpaid,  subject  the  surplus  of  any   property  of  the  principal  in  the 
hands  of  the  mortgagor,  that  might  remain  after  compensating  the  mort- 
gagor for  loss  or  damage  by  the  appropriation  of  his  property  mort- 
gaged; but  they  are  not  entitled  to  appropriate  both  the  property  mortgaged 
by  the  surety,  and  that  conveyed  or  mortgaged  by  the  principal  to  the  surety 
for  the  indemnity  of  the  latter.     Van  Orden  v.  Admr.  of  Est.  of  Catha- 
rine Brady,  35  Cal.  136. 

31.  Separate  Debts  Secured   by  one  Mortgage. — Where 
separate  debts  of  several  persons  are  secured  by  one  mortgage,  either 
creditor  may  bring  suit  to  foreclose,  but  other  parties  interested  must  be 
brought  in.     Taylor  v.  Yreka  Water  Co.,  14  Cal.  212. 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  26 1 

32.  Severance  from.  Realty. — The  severance  and  removal  of 
a  house  from  land  covered  by  a  mortgage  withdraws  the  house  from  the 
mortgage  lien;  and  after  the  removal  the  mortgagor  or  his  assignee 
has  a  right  to  sell  the  house,  and  the  purchaser  may  convert  it  to  his 
own  use.     Buckout  v.  Swift,  27  Cat.  434. 

33.  Statute  of  Limitations. — Where  an  action  upon  a  prom- 
issory note  secured  by  a  mortgage  of  the  same  date  upon  real  property 
is  barred  by  the  statute,  the  mortgagee  has  no  remedy  upon  the  mort- 
gage.    That  though  distinct  remedies  may  be  pursued  by  him,  the  limi- 
tation prescribed  is  the  same  by  both,  (19  Pick.  489;  Sichel  v.  Carillo, 
Cal.  Sup.  Ct.,  Apl.   T.,  1869.)     In  the  older  states,  where  a  different 
time  was  prescribed  in  the  statutes  of  limitations  for  simple  contracts 
and  those  under  seal,  an  action  to  foreclose  a  mortgage  was  held  not  to 
be  barred,  although  the  action  on  the  note  secured  was  barred.     Thus, 
in  (Elkins  v.  Edwards,  8  Geo.  326),  an-action  to  forclose  a  mortgage, 
the  Supreme  Court  of  Georgia  say:  Because  the  remedy  on  the  note  is 
barred  by  the  Statute  in  six  years,  it  does  not  follow  that  the  creditor's 
remedy  on  the  mortgage,  being  a  sealed   instrument,  is  also   barred. 
(Sichel  v.  Carrillo,  Cal.  Sup.  Ct.,  Apl.   T.,  1869.)     The  non-action  of 
the  holder,  by  which  the  action  became  barred,  would  not  discharge  the 
surety.     (Dane  v.  Corduan,  24  Cal.   164;  Whiting  v.  Clarke,  17  Cal. 
410.)     In  the  latter  case,  the  creditor  allowed  the  demand  to  become 
barred  as  to  the  principal,  and  the  surety  claimed  that  the  bar  dis- 
charged him.     The  Court  held  otherwise;  and  the  case  is  directly  in 
point  as  to  this  question.     (Sichel  v.  Carillo,  Cal.   Sup.    Ct.,  Jul.   T., 
1869.)     The  principle  thus  established  is,  that,  there  are  two  distinct 
contracts,  and  two  distinct  causes  of  action;  and  that  the  creditor  has  stipu- 
lated for  two  remedies,  one  on  the  note,  and  the  other  on  the  mortgage; 
that  is  to  say  that,  there  is  one  cause  of  action  on  the  note  against  the 
maker,  and  another  on  the  mortgagor,  and  these  may  be  against  differ- 
ent parties,  or,  if  originally  against  the  same  party,  they  may  subse- 
quently become  separated  and  attach  to  different  parties.     This  princi- 
ple was  affirmed  in  (Low  v.  Allen,  26  Cal.  142;  and  Dent  v.  Spear,  Id. 
362;  consult  on  this  point  the  late  decision,  Sichel  v.  Carillo,  Cal.  Sup. 
Ct.,  Apl.  T.,  1869.)      The  cause  of  action  is  barred  by  failure  to  pre- 
sent the  notes  to  the  administrator.     But  is  only  barred  as  to  the  maker 
of  the  notes.     The  debt  is  not  paid,  satisfied,  discharged,  or  in  any 
way  extinguished,  and  the  cause  of  action  against  the  lands  on  mortgage 
remains  according  to  the  principles  of  the  cases  cited.     Sichel  v.  Carillo, 
Cal.  Sup.  Ct.,  Apl.  7'.,  1869. 

34.  Stipulations    in   Mortgage. — In  foreclosing  a  mortgage 


262  FORMS   OF    COMPLAINTS. 

containing  a  stipulation  that  the  mortgage  should  be  entitled  to  all  costs, 
including  counsel  fees,  not  exceeding  five  per  cent,  of  the  amount  due, 
it  is  not  necessary  to  aver  in  the  complaint  that  five  per  cent,  was  rea- 
sonable counsel  fees,  as  the  counsel  fees  thus  stipulated  to  be  paid  were 
not  the  cause  of  action,  but,  like  costs,  a  mere  incident  to  it,  and  might 
be  fixed  by  the  Court,  at  its  discretion,  not  exceeding  the  five  per  cent. 
(Carriere  v.  Minturn,  5  CaL  435;  Gronfier  v.  Minturn,  5  Id.  492.) 
And  it  is  not  necessary  to  aver  in  the  complaint  that  five  per  cent,  was 
reasonable. 

35.  Subsequent  Incuinbrancers. — If  there  are  incumbrancers 
which  the  plaintiff  insists  are  subsequent  to  his  mortgage,  but  who  claim 
to  have  a  prior  equity,  e.g.,  where  the  plaintiff  claims  to  have  become 
mortgagee  in  good  faith  without  notice  of  a  prior  claim,  the  facts  must 
be  specially  stated.     Potter  v.  Crandall,  Clarke,  119;  Bank  of  Orleans 
v.  Flagg,  3  Barb.  Ch.  316. 

36.  Subsequent  Liens. — It  is  not  necessary  to  make  a  claim  for 
payment  of  subsequent  liens.     (Field  v.  Hawxhurst,  9  How.  Pr.  75.) 
See,  as  to  former  practice  in  this  regard,  (Wheeler  v.  Van  Kuren,    i 
Barb.  Ch.  490;  Tower  v.  White,  10  Paige,  395.)     Perhaps,  however, 
it  is  not  necessary  to  do  so.     Field  v.  Hawxhurst,  9  How.  Pr.  75. 

37.  Subsequent  Mortgages. — Where  the  Sheriff  was  proceed- 
ing to  sell  under  a  judgment  in  a  case  of  foreclosure,  and  the  plaintiff 
as  subsequent  mortgagee,  tendered  to  him  the  full  amount  of  the  judg- 
ment and  costs,  which  was  refused,  and  where  plaintiff  paid  into  Court 
the  amount  tendered,  but  not  enough  to  cover  the  interest  accrued  sub- 
sequent to  the  tender,  and  plaintiff  asked  to  be  subrogated  to  their  rights 
as  subsequent  mortgagees,  it  was  held  that  all  the  relief  to  which  the 
plaintiff  is  entitled  could  have  been  speedily  and  summarily  had  in  the 
action  of  foreclosure  on  motion,  and  a  subsequent  equitable  action  will 
not  lie.     Ketchum   v.  Croppin,   Cal  Sup.   Ct.,   Apl.   T.,    1869;   citing 
Boggs  v.  Hargrave,  16  Cal.  559;  Borland  v.  Thornton,  12  CaL  440; 
Comstock  v.  Clemens,  19  CaL  80;  Logan  v.  Hillegass,  16  Cal.  202; 
Imley  v.  Caipenter,    14   Cal.   173;    Gregory    v.    Ford,   14  Cal.   143; 
Sanchez  v.  Carriaga,  31  Cal.  172. 

38.  Substituted  Parties. — Where  the  plaintiff,  being  the  owner 
of  an  undivided  one -half  of  a  tract  of  land,  mortgaged   his  interest 
therein  to  A.,  and  subsequently,  with  his  co-tenant,  conveyed  the  land 
to  B.  and  C.,  two-thirds  to  one  and  one-third  to  the  other,  by  two  sepa- 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  263 

rate  deeds,  in  each  of  which  is  set  forth  the  agreement  of  the  grantees 
to  assume  the  payment  of  the  mortgage;  and  after  the  mortgage  fell 
due,  the  plaintiff  filed  his  bill  against  B.  and  C.,  to  compel  a  fore- 
closure and  payment:  Held,  that  the  case  was  one  of  chancery  jurisdic- 
tion, and  that  it  was  not  necessary  for  plaintiff  first  to  pay  off  the  mort- 
gage before  bringing  his  action.  (Abel  v.  Coons,  7  Cal.  105.)  A  mere 
stranger,  who  voluntarily  pays  money  due  on  a  mortgage,  and  fails  to 
take  an  assignment  thereof,  but  allows  it  to  be  canceled  and  discharged, 
cannot  afterwards  come  into  equity,  and  in  the  absence  of  fraud,  acci- 
dent, or  mistake  of  fact,  have  the  mortgage  re-instated,  and  himself  sub- 
stituted in  the  place  of  the  mortgagee.  Guy  v,  DuUprey,  16  Cal.  195. 

39.  Surplus   Averment. — If  the  complaint   in  a    foreclosure 
suit  avers  that  the  mortgage  was  executed  by  the  defendant  (thereby 
making  it  by  averment  a  legal  mortgage),  and  also  sets  out  a  copy  of 
the  same,  and  it  appears  on  its  face  not  to  be  a  legal  as  distinguished 
from  an  equitable  mortgage,  the  averment  may  be  rejected  as  surplus- 
age.   (Love  v.  S.  N.  L.  W.  &  M.  Co.,  32  Cal.  639;  Vassault  v.  Austin, 
Id.  597.)     As  to  variance   between  pleadings  and  the  mortgage,  see 
Sears  v.  Barnum,  Clarke,  139. 

40.  Tax  Title. — In  an  action  to  foreclose  a  tax  title,  it  is  unnec- 
essary to  allege  in  the  petition  the  due  and  regular  performance  of  the 
acts,  necessary  to  make  the  tax  deed  valid,  when  the  execution  and 
delivery  of  such  deed  by  the  proper  officer  is  averred,  and  a  copy  of  it 
is  annexed.     Byington  v.  Robert,  17  Iowa,  562. 

41.  Tender. — Where  upon  default  in  the  payment  of  interest 
upon  a  ^mortgage,   which  provides  that  on  such  default  the  principal 
shall  at  the  mortgagee's  option  become  payable,  the  mortgagee  has 
made  his  election  by  bringing  an  action  claiming  to  foreclose  for  the 
whole  amount,  the  defendant  has  a  right,  although  after  suit  brought, 
to  tender  the  whole  amount  with  costs,  and  the  tender,  if  refused,  extin- 
guishes the  lien  of  the  mortgage,     i  Rob.  246;  Hartley  v.  Tatham,  i 
Keyes,  222. 

42.  That  Defendants  Claim   some  Interest. — The  above 
allegation  is  sufficient  against  defendants  who  claim  subsequent  to  the 
plaintiff's  mortgage.     It  is  only  important  in  a  contest  as  to  the  sur- 
plus.     (Lewis  v.  Smith.  9  N.Y.  502;  Drury  v.  Clark,    16   Hmv.   Pr. 
424.)     But  a  decree  against  such  defendants  does  not  bar  rights  which 


264  FORMS    OF    COMPLAINTS. 

are  paramount  to  the  title  of  both  mortgagor  and  mortgagee.     Lewis 
v.  Smith,  9  N.Y.  502;  11  Barb.  152. 

43.  Two  Mortgages  on  the  same  Property. — Where  plaintiff 
holds  two  mortgages  on  the  same  property,  an,d  the  property  is  indivis- 
ible he  may  foreclose  when  the  first  becomes  due.     Hawkins  v.  Hill, 
15  Cal.  499. 

44.  Waiver   of  Right   to   Foreclose. — A.   commenced   an 
action  against  B.  on  a  money  demand,  and  to  foreclose  a  mortgage 
given  to  secure  his  debt.     On  motion  of  A.'s  attorney,  the  prayer  for 
foreclosure  of  the  mortgage  and  sale  of  the  property  was  stricken  out, 
and  a  money  judgment  taken.     Held,  that  this  was  an  abandonment 
and  waiver  of  A.'s  right  to  a  foreclosure  and  sale  of  the  mortgaged 
property.     Ladd  v.  Ruggles,  23  Cal.  232. 

45.  When    Action   Lies.  —  Where   a  judgment   is   rendered 
against  A.  and  his  sureties,  and  A.   and  a  portion  of  his  sureties,  in 
order  to  secure  the  payment  of  said  judgment,  mortgage  their  property, 
subsequent  to  which  an  execution  under  the  judgment  is  levied  upon 
sufficient  property  of  B.,  a  surety  not  joining  in  the  mortgage,  to  satisfy 
the  judgment,  and  afterwards  is  voluntarily  released:  Held,   that  no 
action  can  be  maintained  on  the  mortgage;  for  the  levy  satisfying  the 
judgment,  the  mortgage,  as  an  incident  thereto,  must  also  be  thereby 
satisfied.     (People  v.  Chisholm,  8  Cal.  29.)     An  action  will  not  lie  on 
the  mere  recital  in  a  mortgage  of  the  existence  of  the  debt.     In  an 
action  upon  the  promise  to  pay  money,  if  the  complaint  contains  no 
averment  of  consideration  or  of  indebtedness,  except  by  way  of  recital, 
it  is  insufficient.     Shafer  v.  Bear  River  and  Auburn  W.  and  M.  Co., 
4  Cal.  294. 

46.  Who  may  Maintain  Action. — The  creditor  of  the  estate 
of  a  deceased  person  whose  claim  is  secured  by  mortgage,  may,  after 
presentation  of  his  claim,  proceed  at  once  to  foreclose  the  mortgage, 
whether  it  be  allowed  or  rejected.      (Willis  v.  Farley,  24  Cal.  490.) 
But  the  claim  must  first  be  presented  to  the  executor,  or  administrator, 
and  the  probate  judge.     Id. 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  265 

No.  450. 

ii.      The  Same — Another  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on    the  ....  day    of ,   18 .  . ,  the 

defendant  executed  to  the  plaintiff  a  note,  conditioned 

to    pay    him    dollars,    in    ....    years,    with 

interest  at  [twelve]  per  cent,  per  annum,  payable  [half 
yearly]. 

II.  That  for  securing  the  payment  of  the  said  note, 

the  said executed  to  the  plaintiff  a  mortgage 

of  the  same  date,    upon  certain  real  property  in  the 
County  of ,  described  as  follows:   \_give  a  de- 
scription of  the  property,  as  it  should  be  described  in  the 
Sheriff '  s  deed.~\ 

III.  That  on  the  ....  day  of ,  18 .  . ,  the  said 

mortgage  was   recorded   in  the.  Office  of  the  County 

Recorder  of  the  County  of ,  in  Book  .  .  . . ,  of 

Mortgages,  page 

IV.  That  on  the  ...    day  of ,  1 8  .  . ,  the  said 

conveyed  the  same  real  property,  subject  to 

the  said  mortgage,  to  the  defendant  E.F.,  who  there- 
upon covenanted  with  the  said  A.B.,  under  his  hand 
and  seal,  that  the  said  note  and  mortgage  should  be 
paid  at  maturity. 

V.  That  no  part  of  the  principal  or  interest  of  the 
said  note  and  mortgage  has  been  paid. 

VI.  That  the  defendant  G.H.  has  or  claims  some 
interest  in,  or  lien  upon  the  said  real  property;  but  the 


266  FORMS    OF    COMPLAINTS. 

same,  whatever  it  may  be,  is  subject  to  the  lien  of  the 
said  mortgage. 

Wherefore,  the  plaintiff  demands  judgment: 

1.  That  each    of  the  defendants,  and  all   persons 
claiming  under  any  of  them,  subsequently  to  the  com- 
mencement of  this  action,  be  foreclosed  of  all  equity  of 
redemption  or  other  interest  in  the  said  real  property. 

2.  That  the  same  may  be  sold,  and  the  proceeds 
applied  to  the  payment  of  the  amount  due  on  the  said 
note  and  mortgage,  with  interest. 

3.  That  if  there  be  any  deficiency,  the  defendants 
A.B.  and  E.E.  pay  the  same. 


45.  Essential  Averments. — In  an  action  upon  the  promise  to 
pay  money,  if  the  complaint  contains  no  averment  of  consideration  or 
of  indebtedness,  except  by  way  of  recital,  it  is  insufficient.   (Shafer  v.  Bear 
River  and  Auburn  W.  and  M.  Co.,  4  Cal.  294.)     And  an  action  will 
not  lie  on  the  mere  recital  in  a  mortgage  of  the  existence  of  the  debt. 
(Id.)     Though  it  has  been  held  that  the  indebtedness  for  which  the 
mortgage  was  given  need  ndt  be  set  forth.     (Day  v.  Perkins,  2  Sandf. 
Ch.  359.)     The  averment  in  the  complaint  that  the  plaintiff  is  the  owner 
of  the  note  and  mortgage  is  sufficient,  without  stating  that  he  is  holder. 
(Rollins  v.  Forbes,  10  Cal.  299.)     A  complaint  in  an  action  commenced 
after  the  death  of  the  husband,  on  a  note  and  mortgage  executed  by 
the  husband  and  wife,  during  the  life  of  the  husband,  does  not  state  a 
cause  of  action,  unless  it  aver  that  the  husband  in  his  lifetime  failed  to 
pay  the  note.     Brown  v.  Orr,  29  Cal.  120. 

46.  Form. — This  form  is  from  Swan's  PI.  414. 

47.  Joinder  of  Parties. — In  a  proceeding  to  foreclose  a  mortgage, 
or  to  enforce  payment,  both  from  the  maker  and  the  indorser,  the 
original  mortgagee  cannot  be  joined  in  the  same  count.     Sands  v. 
Wood,  i  Clarke,  263. 

48.  Joinder   of  Causes  of  Action. — It  is  not  an  improper 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  267 

joinder  of  two  causes  of  action  to  sue  the  indorser  of  a  promis- 
sory note  on  his  liability  as  such,  and  to  ask  a  decree  against  the  mort- 
gagor foreclosing  a  mortgage,  given  to  secure  the  same  note  by  another 
party.  (Eastman  v.  Turman,  24  Cal.  382.)  Claim  against  mortgagor 
and  mortgagee  and  persons  having  liens  may  be  united.  (Farwell  v. 
Jackson,  28  Cal.  105.)  Mortgage  and  debt  may  be  united.  Where  a 
suit  was  brought  to  foreclose  a  mortgage  executed  by  husband  and  wife 
to  secure  a  note  made  by 'the  husband  alone,  and  the  complaint  prayed 
for  judgment  against  the  husband  for  the  amount  of  the  note  and 
interest,  and  a  decree  against  both  defendants  for  the  sale  of  the  mort- 
gaged premises:  Held,  there  was  no  misjoinder  of  actions,  and  the 
complaint  was  not  demurrable  on  that  ground.  Rollins  v.  Forbes,  10 
Cal.  299. 

49.  Parties. — The  cause  of  action  against  the  mortgagor  on  the  mort- 
gage, in  such  case,  might  be  prosecuted  to  judgment,  without  making 
the  maker  of  the  notes  a  party.      (Sichel  v.  Carillo,  Cal.  Sup.  Ct.,  Apl. 
T.,  1869.)     Where  certain  parties  executed  notes  and  a  mortgage  to 
secure  their  payment  to  certain  individuals  of  their  number,  suit  may 
be  brought  for  the  foreclosure  of  the  mortgage,  notwithstanding  the 
plaintiffs  in  the  suit  are  both  payers  and  payees,  mortgagors  and  mort- 
gagees.    (McDowell  v.  Jacobs,  10  Cal.  387.)     The  right  of  the  plaintiff 
to  go  into  equity,  and  foreclose  a  mortgage  given  to  secure  a  note,  de- 
pends upon  the  fact  whether  he  was    really  interested  in  the  subject 
matter.     (Ord  v.  McKee,  5  Cal.  515.)     A  note  was  executed  to  O.,  as 
the  agent  of  M.,  and  the  mortgage  to  secure  the  note  was  made  to  M. 
O.,  under  a  contract  with  M.,  was  entitled  to  one-half  of  the  note: 
Held,  that  O.  having  a  right  to  the  note,  had  a  right  to  foreclose  the 
mortgage.     (Id.}     It  seems  that  on  foreclosure  of  a  subsequent  mort- 
gage, a  prior  mortgage  cannot  be  adjudged  to  be  discharged  without 
consent  of  the  prior  mortgagee.     McReynolds  v.  Munns,  2  Keyes,  215. 

50.  Several   Notes. — Where   several   notes  have   been  given 
which  are  secured  by  one  mortgage,  and  the  notes  are  assigned  to 
different  persons,   the   assignor   has  a  right,  by  agreement  with   the 
assignees,  to  fix  the  rights  of  the  purchasers  of  the  several  notes  to  the 
mortgage  security.     (Grattan  v.  Wiggins,  23  Cal.  16.)     Where,  in  such 
a  case,  the  assignee  of  a  note,  having  the  first  right  to  the  benefit  of  the 
mortgaged  security,  forecloses  when  the  debt  falls  due,  and  obtains  a 
decree  under  which  all  the  mortgaged  property  is  sold,  such  foreclosure 
and  sale  operate  as  an  extinguishment  of  the  mortgage.     (Id.)     The 


268  FORMS   OF     COMPLAINTS. 

holders  of  the  other  notes  secured  by  the  mortgage  have  a  right  to 
redeem  from  the  sale  made  under  such  forclosure;  but  when  not  made, 
parties  to  the  action  must  assert  this  right  to  redeem  within  four  years, 
or  it  is  barred  by  the  Statute  of  Limitations.  Id. 


No.  451. 

in.    Assignee  of  Mortgagee  Guaranteeing  Payment,  against  Mortgagor, 
Grantee  Assuming  Payment,  and  Junior  Incumbrancers. 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  and  II.    As  in  Form  No,  449,  substituting  mort- 
gagee s  name  for  the  words  "  the  plaintiff.'' 

III.  That  on  the   ....  day  of ,    18 .  . ,  the 

defendant   \mortgag'ee\t  by  an  instrument   in   writing 
under  his  hand  and  seal,  assigned  said  note  and  mort- 
gage to  plaintiff,  which  assignment  contained  a  covenant, 
of  which  the  following  is  a  copy:   \_set  it  forthl\ 

IV.  That  on  the day  of ,   18 .  . ,  the 

defendants,  A.  B.  and  C.  D.,  entered  into  an  indenture 
under  their  hands  and  seals,  whereby  the   said  A.  B. 
conveyed  to  said  C.  D.  the  mortgaged  premises,  subject 
to  said  mortgage,  and  said  C.  D.  covenanted  that  he 
would  pay  off  and  discharge  the  same  as  a  part  of  the 
consideration  of  said  conveyance  [or  otherwise,  accord- 
ing to  the  covenant^. 

V.  That  no  proceedings  have  been  had,  at  law  or 
otherwise,  for  the  recovery  of  said  moneys,  or  any  part 
thereof. 

VI.  [  Where  plaintiff  holds  other  liens. ~\     That  on 

the  ....  day  of ,    1 8 .  . ,  at ,  in  the 

Court  of ,  the  plaintiff  recovered  a  judgment, 


FORECLOSURE    OF    MORTGAGBB    AND    LIENS.  269 

which  was  duly  given  by  said  Court  against  the  defend- 
ant, for  dollars,  in  an  action  wherein  this 

plaintiff  was  plaintiff  [or  defendant] ,  and  the  defendant 
herein  was  defendant  [or  plaintiff] ;  and  which  was  on 

the day  of ,    1 8 .  . ,  duly  docketed  in 

the  Office  of  the  Clerk  of  said  County,  so  as  to 
become,  and  still  remains,  a  lien  on  the  mortgaged 
premises. 

VII.  That  the  defendants  [subsequent  incumbrancers~\ 
have  or  claim  some  interest  in,  or  claim  upon  said 
premises,  or  some  part  thereof,  accrued  since  the  lien 
of  said  mortgage. 

Wherefore  the  plaintiff  demands  judgment: 

1 .  That  each  of  the  defendants,  and  all  persons  claim- 
ing under  them,  or  either  of  them,  subsequent  to  the 
execution  of  said  mortgage  upon  said  premises,  may  be 
foreclosed  of  all  right,  claim,  or  equity  of  redemption, 
or  other  interest  in  said  mortgaged  premises,  and  every 
part  thereof. 

2.  That  the  same  be  sold,  and  the  proceeds  applied 
to  the  payment  of  the  costs  and  expenses  of  this  action, 
and  the  amount  due  on  said  bond  and  mortgage,  and 
the  amount  of  said  premium  of  insurance  [and  of  said 
judgment],  with  interest  on  said  moneys  up  to  the  time 
of  such  payment. 

3.  That  the  defendant  [mortgagor]  may  be  adjudged 
to  pay  any  deficiency  that  may  remain  after  applying 
all  of  said  moneys  so  applicable  thereto. 


NOTE. — This  form  is  from  Abbotts'  Forms,  No.  68 1. 


270  FORMS    OF    COMPLAINTS. 

51.  Assignees. — Where  an  assignment  of  a  note  and  mortgage 
has  been  made  to  plaintiffs  to  indemnify  them  as  sureties  on  a  bail  bond 
for  the  assignor,  and  where  suit  is  then  pending  on  such  bond,  it  is  proper 
for  them,  as  such  assignees,  to  institute  suit  on  the  note  and  mortgage; 
and  a  decree  of  foreclosure  in  such  case,  with  directions  to  pay  the 
money  into  Court,  to  await  the  further  decree  of  the  Court,  is  proper, 
or  at  least,  there  is  no  error  in  such  a  decree  to  the  prejudice  of  the  de- 
fendants.    (Hunter  v.  Levan,  n  Cal.  11.)     If  a  mortgage  is  assigned 
by  the  mortgagee  to  another  party,  as  a  pledge  for  the  payment  of  a 
debt  due  the  other  party  by  the  mortgagee,  it  is  not  an  improper  joinder 
of  several  causes  of  action  for  the  assignee  to  unite  in  the*same  action 
his  claim  against  the  mortgagor  and  mortgagee  and  persons  having 
liens  or  incumbrances  upon  the  mortgaged  property,  and  make  them 
all  parties.     Farwell  v.  Jackson,  28  Cal.  105. 

52.  Averment. — In  a  foreclosure  action,  the  complaint  alleged 
that  the  mortgage  was  executed  and  delivered  to  one  P.,  that  he  was 
since  deceased,  and  that  his  wife,  having  been  qualified  as  his  executrix, 
had  duly  assigned  the  same  to  the  plaintiff;  that  it  was  owned  and  held 
by  him  by  virtue  of  the  assignment.     The  answer  denied  that  the  mort- 
gage was  owned  by  the  plaintiff  by  virtue  of  the  assignment,  or  that 
he  was  the  lawful  owner  of  it.     On  the  trial  the  plaintiff  produced  a 
mortgage  in  which  the  mortgagee  was  named  as  "P.,  acting  adminis- 
trator of  the  estate  of  D."     Held,  that  evidence  on  behalf  of  defendants 
to  show  that  the  mortgage  was  taken  to  secure  a  debt  due  to  the  estate 
of  "D,"  and  therefore  that  the  executrix  had  no  title  to  it,  was  admis- 
sible.    (Renaud  v.  Conselyea,  7  Abb.  Pr.  105.)     The  decision  in  this 
case  (5  Abb.  Pr.  346)  reconsidered  and  reversed,  Id. 


No.  452. 

i.     For  Redemption  of  Real  Property. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.   That  on  the  ....  day  of 1 8 . . ,  he  executed 

to  the  defendant  a  mortgage  upon  certain  real  property 
in  the  City  of ,  in  the  County  of , 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  271 

described  as  follows:  [describe  it\,  to  secure  the  pay- 
ment of  ...!....  dollars  in  ....  years,  with  interest 
at  ....  per  cent,  per  annum,  payable  [half  yearly] . 

II.    That  on  the    ....    day  of    ,   18 .  . ,   he 

tendered  to  the  defendant   dollars,  being  the 

principal  of  the  said  mortgage,  with  interest  from  the 
date  thereof  to  that  time,  and  requested  the  defendant 
to  acknowledge  satisfaction  for  the  same,  but  he  refused 
to  do  so. 

Wherefore  the  plaintiff  demands  judgment: 

1 .  That  he  be  allowed  to  redeem  the  said  mortgage, 
upon  paying  to  the  defendant  the  amount  due  thereon. 

2.  That  upon  such  payment  the  defendant  satisfy  the 
said  mortgage  of  record. 


53.  Action    to    Redeem. — A    subsequent    party    in    interest, 
whether  by  way  of  mortgage,  lease,  or  judgment,  cannot  on  motion 
obtain  a  right  to  redeem  and  have  the  property  conveyed  to  him  by  a 
purchaser.     The  only  remedy  in  such  a  case  is  by  action  seeking  to 
enforce  such  right  to  redeem;  and  in  such  an  action  the  rights  of  all 
other  parties  can  be  protected.     (Douglass  v.  Woodworth,  51  Barb.  79.) 
Although  a  power  of  sale  mortgage  authorizes  the  mortgagee  or  his 
assignee  to  become  the  purchaser  at  the  sale,  yet  if  he  fails  in  the 
utmost  diligence  in  protecting  the  rights  of  the  mortgagor,  the  mort- 
gagor will  be  allowed  to  redeem.     Montague  v.  Dawes,  14  All.  369; 
see  Hahn  v.  Pindell,  3  Bush.  189,  193. 

54.  Adverse    Claimants. — For  the   form   of  a   complaint  to 
ascertain  and  declare  the  rights  of  adverse  claimants  to  real  property, 
to  allow  redemption  from  a  mortgage,  to  restrain  foreclosure  of  a 
mortgage,  and  for  the  appointment  of  new  trustees  under  a  trust  deed, 
to  fill  the  place  of  trustees  who  had  renounced,  see  Woodgate  v.  Fleet, 
9  Abb.  Pr.  222. 

55.  Tender. — The  plaintiff,  in  an  action  to  redeem  a  mortgage, 


272  FORMS    OF    COMPLAINTS. 

need  not  allege  or  prove  a  tender  of  the  amount  due  upon  the  mort- 
gage debt  previous  to  the  commencement  of  the  action.  Daubenspeck 
v.  Platt,  22  Cal.  330. 


JVo.  453. 

ii.   By  a  Lessee. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.      That   on  the    ....  day  of ,   187.,  the 

defendant  \nwrtgagor\  being  the  owner  in  fee  of  the 
following  described  premises,  leased  the  same  to  the 
plaintiff  by  an  indenture  dated  on  that  day,  a  copy  of 
which  is  annexed  as  a  part  of  this  complaint;  and  that 
by  virtue  of  said  lease  the  plaintiff  entered  upon,  and 
ever  since  has  been,  and  still  is  in  possession  of  said 
premises,  and  is  vested  with  the  unexpired  term  thereof; 
which  premises  are  [described]  as  follows:  [descrip- 
tion^ 

\\.   That  on  the day  of ,  18 .  . ,  said 

[mortgagor]   made    to    the    defendant   [mortgagee]   a 

mortgage  upon  the  same  premises  to  secure 

dollars,  payable  on  the  ....  day  of ,  1 8 .  . . 

III.  That  on  the  said  day  the  mortgage  became  due, 
but  has  not  been  paid;  and  that  said  [mortgagee]  has 
commenced  an  action  to  foreclose  the  same  for  such 
default. 

IV.  That  on  the    day  of ,  18  . . ,.  the 

plaintiff  tendered dollars  to  said  [mortgagee'], 

being  the  amount  due  on  said  mortgage,  with  interest, 
and  the  costs  of  said  action  [or  proceeding]  up  to  that 
time,  in  redemption   of  said  mortgage,  and  has  ever 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.       •    2/3 

since  been  ready  and  willing-  to  pay  the  same;  and  did 
then  request  him  to  assign  the  same  to  the  plaintiff,  but 
he  refused  so  to  do. 

Wherefore,  the  plaintiff  demands  judgment  that  he 
be  allowed  to  redeem  the  said  mortgage  upon  paying 
to  the  defendant  [mortgagee]  the  amount  due  upon  the 
mortgage;  and  that  upon  such  payment  the  defendant, 
by  an  assignment  duly  executed  and  acknowledged  by 
him,  assign  said  bond  and  mortgage  to  the  plaintiff. 


54.  Accounting  and  Redemption. — In  a  bill  for  an  account- 
ing and  redemption,  a  distinct  offer  to  pay  the  amount  due  is  not 
necessary.      The  form  is,  that,  on  the  payment  of  what,  if  anything, 
shall  be  found  due,  the  mortgagee  may  be  decreed  to  deliver  posses- 
sion, etc.   Quin  v.  Brittain,  Hoffm.   353;    and  see  Barton  v.  May,  3 
Sand/.  Ch.  450. 

55.  Form. — The  above  form  is  from  Abbotts'  Forms,  No.  686. 


.  454- 

i.    Mechanics'  Liens — Common  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  [here  set  out  claim  of  plaintiff^. 

II.  That  it  being  the  plaintiff 's  intention  to  avail  himself 
of  the  benefits  of  the  Act  of  the  Legislature  of  .the  State 
of  California,  entitled   "An  Act  for  Securing  Liens  of 
Mechanics   and    Others,"    approved    March    30,   1868, 
and    perfect     a    lien    upon    the     premises     aforesaid, 
and    hereinafter    described,     as    a    security    for    the 
payment     of    the     claim    so    due    to    plaintiff    from 
defendant,  as  aforesaid,  and  to  claim  and   hold   such 

18 


274    '  FORMS    OF     COMPLAINTS. 

lien  not  only  upon  the  said  building  or  other  improve- 
ments, but  also  upon  the  land  whereon  the  same  have 
been  constructed,  together  with  a  covenient  space  about 
the  same,  or  so  much  as  might  be  required  for  the  con- 
venient use  and  occupation  thereof,  or  upon  such  interest 
as  the  said  defendant,  who  caused  the  said  building  or 
other  improvement  to  be  constructed,  had  therein  on 
the  ....  day  of :  . ,  1 8 .  . ;  and  before  the  expira- 
tion of  ....  days  next  ensuing  the  completion  of  such 
building  or  other  improvements  as  aforesaid,  [the  said 

plaintiff]  did  file,  on  the  ....  day  of ,  1 8 .  . , 

and  after  performance  of  said   contract  and  completion 

of ,  with  the  County  Recorder  of  the  County 

of [whereon  said  premises  are  wholly  situa- 
ted], his  claim,  containing  a  true  statement  of  his  demand 
against  defendant,  after  deducting  all  just  credits  and 
offsets,  with  the  name  of  the  owner  or  reputed  owner 
thereof;  also  the  name  of  the  person  by  whom  occupied, 
and  also  a  description  of  the  property  to  be  charged 
with  said  lien  sufficient  for  identification,  duly  verified 
by  the  oath  of 

III.  That  said  claim  was  for  constructing  [describe 
building],  upon  the  following  described    premises,  to 
wit:   [description  of  premises.] 

IV.  That  the   said  [building  was]  at  the  time  said 
work  was  commenced,  and  until  the  time  of  filing  the 
notice  of  the  lien  therein  mentioned,  the  property  of  the 
defendant. 

V.  That  ninety  days  have  not  elapsed  since  the  fil- 
ing of  said  lien. 

VI.  That dollars   is  a  reasonable  amount 

for  counsel  fees  in  this  action. 


FOkECLOSURE    OF    MORTGAGES    AND    LIENS.  2/5 

Wherefore  said  plaintiff  prays  judgment  directing  the 
sale  of  the  premises  above  described,  to  the  extent 
of  the  right  of  the  defendant  [last  named]  therein,  on  the 

....  day  of ,    18.  .,    by  the   Sheriff  of  said 

County,  according  to  law  and  the  practice  of 

this  Court,  and  directing  that  the  proceeds  of  such  sale 
be  applied  to  the  payment  of  the  costs  of  these  pro- 
ceedings, reasonable  counsel  fees,  and  to  the  payment 
of  said  plaintiff's  claim  as  aforesaid,  amounting  to 

dollars,    and   also   for   the   payment   of  the 

claim  of  any  other  lien-holder  or  holders  on  said  pro- 
perty, if  any  such  there  be,  who  shall  come  in  and 
duly  be  made  parties  to  this  action,  and  for  such  other 
and  further  relief  as  may  be  just  in  the  premises. 

,  [Verification.} 


56.  Action,  how  Commenced. — No  complaint  need  be  filed 
or  summons  issued,  but  in  lieu  thereof  a  petition  is  filed  and  the  clerk 
issues  a  notice,  which  is  published.     Van  Winkle  v.  Stow,  23  Cal.  457. 

57.  Buildings    and    other    Improvements. — These  words 
include  and  apply  to  any  wharf,  bridge,  ditch,  flume,  tunnel,  fence, 
machinery,  railroad,  wagon-road,  aqueduct  for  hydraulic  power,  or  for 
mining  or  other  purposes.     Laws  of  Cal.  1867-8,  p.  593. 

58.  Complaint  by  Sub-Contractor. — In  New  York,  where  the 
proceeding  is  by  a  sub-contractor,  his  complaint  must  aver  that  the  labor 
or  materials  were  furnished  iij  conformity  with  the  contract  between  the 
owner  and  the  original  contractor.   (Boderick  v.  Poillon,  2  E.  D.  Smith, 
554;  Quinn  v.  Mayor  etc.  of  N.Y.,  2  E.  D.  Smith,  558;  see,  also,  Cun- 
ningham v.  Jones,  4  Abb.  Pr.  433;  Doughty  v.  Devlin,  2  E.  D.  Smith, 
625;    Kennedy  v.  Paine,  Id.    651  ;    Cronk   v.  Whittaker,  Id.    647; 
Hauptman  v.  Halsey,  Id.  668.)  •  The  complaint  must  show  that  the 
complaint  has  taken  the  requisite  steps  to  create  a  lien.     Foster  v. 
Poillon,  2  E.  D.  Smith,  556;  Crohkright  v.  Thomson,  i  Id.  66 1. 

59.  "Construction,  Alteration,  or  Repair,"  include  partial 


276  FORMS    OF    COMPLAINTS. 

construction  and  all  repairs  dpne  in  and  upon  any  building  or  other 
improvement.     Laws  of  Cal.  1867-8,  p.  593. 

60.  Construction  of  Averment. — The  reasonable  construction 
of  an  allegation  in  a  complaint,  that  "plaintiff  furnished  the  materials 
between  the  sixth  day  of  April,  1862,  and  the  twenty-eight  day  of  June 
1862,"  is,  that  the  plaintiff  commenced  furnishing  the  materials  on  the 
sixth  day  of  April,  and  continued  furnishing  the  same  from  time  to 
time  up  to  June  28th.     McCreaz>.  Craig,  23  Cal.  522. 

61.  Description  of  Premises. — For  description  of  premises  in 
real  action,  see  (Cal.  Pr.  Act,  §  58),  and  cases  therein.     It  is  sufficient 
if  it  describes  the  premises  sufficiently  to  enable  thesheriffto  determine 
beyond  a  doubt  the  premises  to  be  sold;  and  the  street  number  of  the 
premises  should   be  shown,  or  the  plaintiff's  ignorance  of  it  averred. 
(Duffy  v.  McManus.  3  E.  D.  Smith,  657;  S.  C.,  4  Abb.  Pr.  432.)    The 
employees  of  the  contractor  have  no  lien  on  the  building  as  principals. 
(Dore  v.  Sellers,  27  Cal.  588.)     The  following  notice  of  a  mechanic's 
lien  does  not  contain  such  a  description  of  the  premises  as  the  statute 
contemplates:  "A  dwelling  house  lately  erected  by  me  for  J.  W.  Conner, 
situated  on  Bryant  Street,  between  Second  and  Third  Streets,  in  the  City 

of  San  Francisco,  on  Lot  No "     The  fact  that  Conner  owned  no 

other  building  on  that  street  would  not  cure  the  defect.     Montrose  v. 
Conner,  8  Cal.  344. 

62.  Form. — The   above   form   is  drawn   under  the   California 
Statutes.     The  mechanic's  lien  acts  passed  in  this  State  previous  to 
1862  were  all  repealed  by  the  Act  of  that  year,  and  that  Act  was  in  its 
turn  repealed  by  the  Act  of  1867-8.    See  Laws  of  Cal.  1867-8,  p.  593 

83.  Interest  of  Third  Parties. — The  rights  and  interests  of 
third  parties,  purchasers  and  incumbrancers,  prior  to  the  suit,  are 
affected  only  in  a  similar  degree  as  upon  a  foreclosure  of  a  mortgage. 
Whitney  v.  Higgins,  10  Cal.  547. 

64.  Jurisdiction. — The  proceeding  to  enforce  a  mechanic's  lien 
under  the  California  Law  of  1861  is  a  special  case,  and  county  courts 
have  jurisdiction.  (McNiel  v.  Borland,  23  Cal.  144.)  The  enforce- 
ment for  liens  under  this  act,  except  liens  upon  personal  property,  under 
Section  15,  shall  be  in  the  District  Court,  and  the  pleadings,  process, 
practice,  and  other  proceedings  shall  be  the  same  as  in  other  cases. 
Laws  of  Cal.  1867-8,  p.  691. 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.          277 

65.  Limitation. — If  the  time  has  expired  for  the  enforcement  of 
the  lien,  the  plaintiff  is  not  entitled  to  a  judgment.     Green  v.  Jackson 
Water  Co.,  10  Cal.  374. 

66.  Material  Men. — In  a  suit  by  a  material  man  to  enforce  a 
lien  against  a  building  for  lumber  sold  to  the  contractor,  it  must  be 
averred  and  proved  that  the  lumber  was  expressly  furnished  for  the 
building  in  question,  and  it  is  not  sufficient  to  show  that  is  was  used 
in  such  building.     Bottomly  v.  Grace  Church,  2  Cal.  90. 

67.  Parties. — All  persons  personally  liable,  and  all  lien-holders 
whose  claims  shall  have  been  filed  for  record,  shall,  and  all  other  persons 
interested  may  be  made  parties.     Laws  of  Cal.  1867-8,  p.  592. 

68.  Parties  Intervening. — Persons  having  a  lien  by  mortgage 
upon  the  property  have  no  right  to  intervene.     (Van  Winkle  v.  Stowe, 
23  Cal.  457.)     An  intervention  within  six  months  is  as  much  a  com- 
pliance with  the  Act  as  an  original  suit.    (Mars  v.  McKay,  14  Cal.  127.) 
But  where  the  suit  has  been  pending  some  time,  and  the  application  to 
intervene  was  made  just  as  plaintiff  was  taking  judgment,  it  was  properly 
refused.     Hocker  v.  Kelley,  14  Cal.  164. 

69.  Parties  Plaintiff — Material  men   and   mechanics,  entitled 
to  a  lien  on  a  building,  but  whose  claims  are  several,  without  any  com- 
munity of  interest  in  the  claims  themselves,  may  join  as  plaintiffs  in  an 
equitable  action  to  establish  and  enforce  their  liens.     Barber  v.  Rey- 
nolds, 33  Cal.  497. 

70.  Personal  Actions. — Nothing  in  the  provisions  of  this  A  ct 
shall  impair  or  affect  the  right  of  any  person  to  maintain  a  personal 
action  to  recover  the  debt  secured.     Laws  of  Cal.  1867-8,  p.  592. 

71.  Right  of  Lien. — Unless  some  one  or  some  portion  of  the 
several  payments  to  be  made  to  the  contractor  during  the  progress  of 
the  building,  were  made  to  the  original  contractor  by  the  employer 
before  they  became  due  by  the  terms  of  the  original  contract,  or  after 
notice  had  been  duly  served  upon  the  employer  by  the  holder  of  a 
claim  against  the  contractor,  the  claimant  has  no  right  of  lien  upon  the 
premises,  and  no  legal  personal  claim  against  the  employer.     Henley 
v.  Wadsworth,  Cal.  Sup.  Ct.,  Jul.  T.  1869. 

72.  Subsequent  Statute  Governs. — Where  the  contract  was 
made  and  the  materials  furnished  while  the  California  Lien  Law  of 


278  FORMS    OF     COMPLAINTS. 

1858  was  in  force,  but  notice  of  lien  was  not  filed  until  after  the  Lien 
Law  of  1862  went  into  effect,  the  lien  must  be  enforced  according  to 
the  provisions  of  the  later  Act.  McCrea  v.  Craig,  23  Cal.  522. 


No.  455. 

ii.    By  Contractor,  for  Building  Materials. 
[TITLE.] 

The  complaint  of  the  plaintiff,  filed  pursuant  to  an 

order  of  this  Court,  ma'de  on  the  ....  day  of , 

18. .,  shows: 

I.  That  on  the  ....  day  of ,  1 8 .  . ,  at , 

this  plaintiff,  by  virtue  of  a  contract  with  the  defendant, 
sold  and  delivered  to  the  defendant  certain   building 

materials,  consisting  of ,  of  the  value  of 

dollars;  the  quantity  and  value  of  which  is  set  forth  in 
the  bill  of  particulars  herein. 

II.  That  by  the  terms  of  said  contract  and  sale,  the 

said  sum  became  due   on  the  ....  day  of , 

1 8 .  . ,  but  the  defendant  has  not  paid  the  same. 

III.  That  the  said  materials  were  used  in  erecting  a 
building  and  appurtenances  upon  the  following  described 
premises,  to  wit:   \describe  premises.] 

IV.  That  the  said  premises  were,  at  the  time  of  mak- 
ing said  contract  of  sale,  and  until  the  filing  the  notice 
of    lien    hereinafter    mentioned,    the    property  of  the 
defendant. 

V.  That  on  the  ....  day  of ,    1 8 . . ,  and 

after  performance  of  said  contract,  the  plaintiff  duly  filed 

with  the  Clerk  of  the  City  and  County  of 

[or  Clerk  of County],  a  notice  of  lien  claimed 

upon  said  premises  for  the  indebtedness  aforesaid;  which 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  279 

notice  was  duly  verified,  and  specified  the  amount  of  the 
claim  as  above  stated,  and  specified  the  defendant  as  the 
person  against  whom  the  claim  was  made,  and  as  the 
owner  of  said  premises,  which  were  therein  described 
by  the  street  [and  number]  of  the  building. 

Wherefore  the  plaintiff  prays  judgment,  directing 
a  sale  of  the  interest  of  the  defendant  in  the  premises, 
building,  and  appurtenances  above  described,  to  the 
extent  of  the  right  of  defendant,  on  the  ....  day  of 

,  1 8 .  .   [date  of  filing  the  notice  of  lien~\,  and 

directing  that  the  proceeds  of  such  sale  be  applied  to 
the  payment  of  the  costs  of  these  proceedings,  and  to 
the  payment  of  this  plaintiff's  claim  aforesaid  [and  that 
the  residue  of  such  proceeds,  if  any,  be  paid  to  the  Clerk 

of  the   City   and    County   of ,  to    abide    the 

further  order  of  the  Court] ;  and  that  if  the  proceeds  of 
such  sale  shall  not  be  sufficient  to  discharge  the  costs 
and  claim  aforesaid,  this  plaintiff  have  leave  to  docket  a 
transcript  of  judgment  against  the  defendant  for  such 
sum  as  may  remain  due. 


NOTE. — The  above  form,  and  those  following,  are  taken  from 
Abbotts'  Forms,  Nos.  629  and  631;  and  are  applicable  to  the  City  and 
County  of  New  York.  They  are  given,  as  they  will  be  of  service 
to  the  practitioner  here  as  well  as  elsewhere.  They  are  not  strictly 
applicable  under  the  Statute  of  California.  The  complaint  in  these 
cases  is  subject  to  the  rules  govering  pleadings  in  other  actions.  Duffy 
v.  McManus,  3  E.  D.  Smith,  657;  S.C.,  4  Abb.  Pr.  432. 


280  FORMS    OF    COMPLAINTS. 

JVo.  456. 

Hi.    By  Sub-Contractor,  against  Owner  and  Contractor,  for  Labor. 
[TITLE.] 

The  complaint  of  the  plaintiff,  filed  pursuant  to  an 

order  of  this  Court,  made  on  the  ....  day  of , 

18.  .,  shows: 

I.  That   on  the    ....    day  of   ,   18 . . ,  the 

defendant  W.  X.  [contractor]  entered  into  a  contract 
with  the  defendant  Y.  Z.  [owner]  for  the  erection  of  a 
building  and  appurtenances  upon  the  premises  herein- 
after described;  by  the  terms  of  which  contract  it  was 
agreed  that   [state  substance  of  terms  of  contract;  or 
say,   which  contract  was  as   follows,  to  wit:  and  give 
copy\. 

II.  [State  performance  of  contract  by  contractor  so 
far  as  to  show  indebtedness  of  owner  to  contractor,  and 

aver  suck  indebtedness,  specifying  its  amountJ] 

III.  That  between  the  ....  day  of ,  18 . . , 

and  the  ....  day  of ,  1 8 .  . ,  the  plaintiff,  in 

pursuance  of  an  agreement  theretofore  entered  into  by 
him  with  the  defendant  W.  X.  [contractor],  and  in  con- 
formity with  the  terms  of  the  contract  above  mentioned, 
performed  \_state  kind  of  labor  performed],  to  the  value 

of dollars,  the  nature,  amount,  and  value  of 

which  labor  are  set  forth  in  the  bill  of  particulars  herein. 

IV.  That  by  the  terms  of  the  agreement  between 
the  plaintiff  and  the  defendant  W.  X.  [contractor],  said 

sum  became  due  on  the  ....  day  of ,  1 8 .  . , 

but  he  has  not  paid  the  same. 

V.  That  said  labor  was  performed  in  erecting  a  build- 


FORECLOSURE    OF    MORTGAGES   AND    LIENS.  281 

ing  and  appurtenances  upon  the  following  described 
premises :  \_describe  premises^ 

VI.  That  the  said  premises  were,  at  the  time  when 
said  labor  was  performed,  and  until  the  filing  the  notice 
of  lien  hereinafter  mentioned,  the  property  of  the  de- 
fendant Y.  Z.  [owner"]. 

VII.  That  on  the day  of ,    18.  .,  the 

plaintiff  duly  filed  with  the  Clerk  of  the  City  and  County 

of  New  York  [or  Clerk  of County],  a  notice 

of  lien  claimed  upon  said  premises  for  the  indebtedness 
aforesaid,  which  notice  was  duly  verified,  and  specified 
the  amount  of  the  claim  as  above  stated,  and  specified 
the  defendant   [owner's  name]   as  the  person  against 
whom  the  claim  was  made,  and  as  the  owner  of  said 
premises,  which  were  therein  described  by  the  street 
[and  number]  of  the  building. 

Wherefore  the  plaintiff  prays  judgment  directing  a 
sale  of  the  interest  of  the  defendant  Y.  Z.  [owner]  in 
the  premises,  building,  and  appurtenances  above  de- 
scribed, to  the  extent  of  the  right  of  the  defendant,  on 

the    ....    day    of ,    1 8 .  .   [date  of  filing   the 

notice  of  lien],  and  directing  that  the  proceeds  of  such 
sale  be  applied  to  the  payment  of  the  costs  of  these 
proceedings,  and  to  the  payment  of  the  plaintiff's  claim 
aforesaid  [and  that  the  residue  of  such  proceeds,  if  any, 
be  paid  to  the  Clerk  of  the  City  and  County  of  New 
York,  to  abide  the  further  order  of  the  Court];  and 
prays  judgment,  in  addition,  against  the  defendant  Y.  Z. 

[contractor]  for  the  sum  of dollars  [the  amount 

of  the  plaintiff '  s  claim],  with  interest  from  the  .... 

day  of ,  1 8 .  . ,  together  with  the  costs  of  these 

proceedings. 

NOTE. — See  note  to  preceding  form. 


282  FORMS    OF     COMPLAINTS. 

Notice  of  Forms  of  Contract. — If  sub-contractors,  mate- 
rial men,  or  laborers  furnish  material  or  labor  in  the  construction  of  a 
building  or  work,  relying  upon  their  right  of  lien  under  the  statutes  as 
security  for  their  pay,  they  must  be  held  to  know  the  terms  to  which  the 
right  is  subordinate,  and  upon  which  lien  can  be  secured,  and  to  a 
strict  compliance  with  these  terms.  (Henley  v.  Wadsworth,  Cal.  Sup. 
Ct.,  Oct.  T.,  1869.)  All  such  persons  are  presumed  to  have  notice  of 
the  contract,  a  knowledge  of  its  terms,  and  of  the  rights  and  obliga- 
tions of  the  parties  thereto.  Id. 

Relative  Rights  of  Parties.— Upon  a  compliance  on 
their  part  with  the  terms  of  the  statute,  the  right  of  a  sub-contractor, 
laborer,  or  material  man  to  the  lien  which  through  the  original  con- 
tractor inures  primarily  to  the  benefit  of  persons  in  that  relation, 
must  be  determined  and  controlled  by  the  terms  of  the  original  contract 
between  the  owner  and  original  contractor.  Henley  v.  Wadsworth,  Cal. 
Sup.  Ct.,  Qct  T.,  1869;  citing  Murdoch  v.  Stillwell,  36  Cal. 


No.  457. 

i.     Vendor  against  Purchaser,  to  Enforce  Lien. 
[TITLE.] 

The  plaintiff  alleges: 

I.  That  on  the day  of  .  . . . ,    1 8 .  . ,  at 

,  the  plaintiff  sold  and  conveyed  to   the  de- 
fendant      acres  of  land,  situated  in  [describe 

the  premises  specifically^,  for  the  sum  of dol- 
lars, for  which  the  defendant  agreed  to  pay  the  plaintiff 
the  sum  of dollars  \_state  terms  of  sale~\. 

II.  That  the  defendant  is  indebted  to  the  plaintiff  in 
the  premises  ....  dollars,  no  part  of  which  has   been 
paid. 

III.  That  the  plaintiff  has  a  lien  as  vendor  upon  said 
premises,  for  the    payment  of  said  puschase    money, 
which  he  claims  in  this  action. 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  283 

Wherefore  the  plaintiff  demands  judgment: 

1.  For  the  said  sum  of  ....  dollars,   with  interest 
from  the  ....  day  of ,  1 8 .  . . 

2.  That  the  said  premises  may  be  ordered  sold  for 
the  payment  thereof  [etc.  etc.~\ 

JVo.  458. 

n.    Vendor  against  Purchaser,  and  his  Grantee,  and  Judgment-Creditors, 

to  Enforce  Lien. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.    That  he  was  owner  in  fee  of  the  real  property 

hereafter  described,  and  on  the  ....  day  of , 

1 8 .  . ,  he  sold  the  same  to  the  defendant  A.  B.,  for  the 

sum  of dollars,   and  thereupon  by  his  deed 

conveyed  the  same  to  the  defendant  A.  B.  [in  fee], 
which  premises  are  described  as  follows:  [description  as 
in  deecT\ . 

III.    That  the  said  A.  B.   paid  the  plaintiff 

dollars,  part  of  said  purchase  money,  and  on  the  .... 

day  of ,  1 8  .  . ,  at ,  gave  to  the  plaintiff 

his  promissory  note  for ,  dollars  the  residue 

thereof,  payable  on  the  ....  day  of ,  1 8 .  . . 

III.  That   on  the day  of ,  18 .  . ,  at 

,  the  plaintiff  demanded  payment  of  the  de- 
fendant A.  B.  [of  said  note,  or  ]  of  the  residue  of  said 
purchase-money;  but  he  did  not  pay  the  same. 

IV.  That  the  said  C.  D.  purchased  of  the  said  A.  B. 
a  portion  of  said  premises,  with  the  full  knowledge  that 
the  said  A.  B.  had  not  paid  the  balance  of  said  pur- 
chase-money, and  took  a  conveyance  from  the  said  A.  B. 


284  FORMS    OF     COMPLAINTS. 

to  him  for*  the  said  premises  so  by  him  purchased  of  the 
said  A.  B. 

V.    That  the  said    E.  F.  claims  to   have  recovered 

judgment  against  the  said  A.  B.  for dollars, 

on   the  ....  day  of ,   1 8 .  . ,  in  the  .  . 

Court,  in  the County,  State  of ,  and 

has  caused  execution  to  be  issued  thereon,  and  is  proceed- 
ing to  sell  the  part  of  said  premises  not  sold  to  the  said 
C.  D.,  whereby  the  said  plaintiff  will  wholly  lose  the  bal- 
ance of  the  said  purchase-money,  as  the  said  A.  B.  is 
wholly  insolvent,  and  unable  to  pay  the  same. 

Wherefore  the  plaintiff  demands  judgment: 

1.  Against  the  said  A.  B.,  for  the  said  sum  of 

dollars,  together  with  interest  thereon  from  the  ....  day 
of ,  1 8 .  . ,  and  the  costs  of  this  action. 

2.  That  in  case  the  said  A.  B.  shall  not  pay  the  said 
judgment,  that  the  said  premises  may  be  sold,  and  so 
much  of  the  proceeds  as  may  be  necessary  be  applied 
to  the  payment  of  the  judgment  so  to  be  rendered. 


73.  Execution. — In  a  bill  in  equity  to  enforce  the  lien,  it  is  not 
necessary  to  allege  the  issuance  of  execution  under  a  judgment  at  law 
previously  obtained  by  the  vendor  against  the  purchaser  for  the  amount 
due,  and  the  return  of  nulla  bona,  to  sustain  the  allegation  of  insolvency. 
Walker  v.  Sedgwick,  8  Cal.  398. 

74.  Failure  of  Performance. — It  could  not  be  a  defense  that 
only  one  note  was  due,  as  that  would  be  sufficient  to  show  a  failure  of 
performance.      Creary  v.  Bowers,  Cal.  Sup.  Ct.,  Jan.  2'.,  1862,  not  re- 
par  led;  see  Note  76. 

75.  Lien  as  a  Charge. — The   lien  which  the   vendor  of  real 
property  retains,  after  an  absolute  conveyance,  for  the  unpaid  purchase- 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  285 

money,  is  not  a  specific  and  absolute  charge  upon  the  property,  but  a 
mere  equitable  right  to  resort  to  it  upon  failure  of  payment  by  the  ven- 
dee. Sparks  v.  Hess,  15  Cal.  186;  Hill  v.  Grigsby,  32  Id.  58. 

76.  Notes  not  Security. — The  vendor's  lien  on  the  land  con- 
veyed is  not  lost  by  his  taking  the  notes  of  the  purchaser  for  the  pur- 
chase-money.    And  the  lien  equally  exists,   whether  the  instrument 
amounts  to  a  conveyance  or  merely  to  an  executory  contract.     (Walker 
v.  Sedgwick,  8  Cal.  398.)     The  execution  of  two  notes  for  the  amount 
due  upon  a  note  and  mortgage,  when  the  mortgage  is  not  canceled, 
will  not  defeat  an  action  for  the  foreclosuse  of  the  same,  commenced 
after  the  second  notes  are  due  and  unpaid.     Creary  v.  Bowers,  Cal. 
Sup.  Ct.,Jan.  T.,  1862,  not  reported. 

77.  Purchase-Money  is,  in  equity,  a  lien  on  land  sold  where  the 
purchaser  has  taken  no  separate  security.     (Salmon  v.  Hoffman,  2  Cal. 
138;  Hill  v.  Grigsby,  32  Cal.  55;  Chilton  v.  Braiden's  Admistratrix, 
2  Black.  U.S.  448.)     Married  women  are  included  in  this  rule.     (Id.} 
And  when  the  vendor  has  not  conveyed  the  title,  his  position  is  analo- 
gous to  that  of  a  mortgagee.     Salmon  v,  Hoffman,  2  Cal.  138;  Hill  v. 
Grigsby,  32  Cal.  55. 

78.  Right,   when    Enforced. — The   equitable    right    may   be 
enforced  in  the  first  instance,  and  before  the  vendor  has  exhausted  his 
legal  remedy  against  the  personal  .estate  of  the  vendee.     The  Court, 
after  determining  the  amount  of  the  lien,  can,  by  its  decree,  either  direct 
a  sale  of  the  property  for  its  satisfaction,  and  execution  for  any  defi- 
ciency, or  award  an  execution  in  the  first  place,  and  a  sale  only  in  the 
event  of  its  return  unsatisfied,  as  the  justice  of  the  case  may  require. 
Sparks  v,  Hess,  15  Cal.  186;  Hill  v.  Grigsby,  32  Cal.  58. 

79.  Security. — A  vendor's  lien  does  not  exist  in  this  State,  where 
a  mortgage  security  is  taken  for  the  purchase-money.      The  silent  lien 
of  the  vendor  is  extinguished  whenever  he  manifests  an  intention  to 
abandon  or  not  to  look  to  it.     And  this  intention  is  manifested  by  taking 
other  and  independent  security  upon  the  same  land,  or  a  portion  of  it, 
or  on  other  land.     Hunt  v.  Waterman,  12  Cal.  301. 

80.  Vendor's  Lien. — A  general  averment  in  the  complaint  to 
enforce  the  vendor's  lien,  that  the  mortgage  is  defective  as  a  security,  is 
not  sufficient  to  withdraw  the  case  from  the  general  rules  of  equity.    Hunt 
v.  Waterman,  12  Cal.  305. 


286  FORMS    OF    COMPLAINTS. 

81.  Waiver  of  Lien. — The  equitable  lien  which  a  vendor  of 
real  estate,  after  an  absolute  conveyance,  has  for  the  unpaid  purchase- 
money,  is  waived  by  the  taking  of  a  mortgage  to  secure  the  same, 
although  the  mortgage  is  void  and  cannot  be  enforced.  (Camden  -v. 
Vail,  23  Cal.  633.)  B.  made  a  parol  gift  to  his  daughter  R.,  who  took 
and  kept  possession  of  the  same  twelve  years.  She  then  sold  the  land 
to  M.,  receiving  his  notes  therefor,  and  B.  at  her  request  conveyed  the 
land  to  M.  As  against  the  purchaser,  R.  had  a  vendor's  lien.  Russell 
v.  Watt,  41  Miss.  602. 


No.  459. 

i.     To  Foreclose  Chattel  Mortgage. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the  ....  day  of ,  1 8 . . ,  at , 

the  said  defendant  made  and  executed  his  certain  prom- 
issory note,  in  writing,  in  the  words  and  figures  follow- 
ing, to  wit:    [here  copy  note\ — whereby  he  promised  to 

pay  plaintiff  the  sum  of  $ ,  with  interest- at  the 

time  and  in  the  manner  therein  specified,  in  gold  coin 
of  the  United  States,  and  then  and  there  delivered  the 
said  note  to  the  said  plaintiff. 

II.  That  at  the  time  and  place  aforesaid,  in  order  to 
secure  the  payment  of  said  promissory  note,  the  said 
defendant  executed  and  delivered  to   the  plaintiff  his 
certain  instrument  in  writing,   under  seal,  known  as  a 
chattel  mortgage,  a  copy  of  which  is  hereto  annexed 
as  a  part  of  this  complaint,  marked  "Exhibit  A,"  which 
said  chattel  mortgage  was  made  in  good  faith,  for  the 
purpose  aforesaid,  without  intent  to  defraud  creditors 
or  purchasers,  and  was  verified,  acknowledged,  and  re- 
corded, pursuant  to  the  statute  in  such  case  made  and 
provided. 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  287 

III.  That  the  property  mentioned  and  described  in 
said  chattel  mortgage  and  the  schedule  annexed  con- 
sisted of  [here  describe  property  and  where  situated^. 

IV.  That  no  proceedings  have  been  had  at  law,  or 
otherwise  for  the  recovery  of  said  sum  and  interest,  or 
any  part  thereof,  and  the  same  is  still  wholly  owing  and 
unpaid. 

Wherefore  the  plaintiff  prays  judgment. 

1.  That  the  defendant  be  foreclosed  of  all  interest, 
lien  and  equity  of  redemption  in  said  mortgaged  prop- 
erty, to  wit:  the  said  goods  and  chattels. 

2.  That  the  same  be  sold,  and  that   the  proceeds 
thereof  be  applied  to  the  payment  of  the  costs  and  ex- 
penses of  this  action  and  of  counsel  fees  not  to  exceed 

the  sum  of dollars,  and  of  the  amount  due  on 

said  note  and  mortgage,  with  interest  thereon  up  to  the 
time  of  payment,  at  the  rate  of  ....  per  cent,  per  month. 

3.  That  the  defendant  be  adjudged  to  pay  any  defi- 
ciency that  may  remain  after  applying  all  said  money 
as  aforesaid,  and  for  such  other  and  further  relief  as  to 
this  Court  may  seem  just  in  the  premises.  . 


82.  Action  Lies. — Under  Section  246  of  our  Practice  Act,  if 
commercial  paper  be  mortgaged,  the  mortgage  may  be  foreclosed,  and  the 
securities  sold  under  the  decree ;  and  by  Sections  217  and  2  20,  such  securi- 
ties may  be  seized  and  sold  under  execution  on  a  judgment  at  law.    Davis 
v.  Mitchell,  34  Cal.  87;  cited  in  Donahue  v.  Kelly,  Cal.  Sup.  Ct.,  /«/. 
T.,  1869. 

83.  Assignment  and  Delivery. — Where   a  chose  in  action  is 
assigned  and  delivered  as  collateral  security  for  the  payment  of  a  debt 
due  the  assignee,  the  assignment  and  delivery  to  the  assignee  of  the 

hose  in  action  are  necessary  to  give  the  latter  full  authority  to  readily 


288  FORMS    OF    COMPLAINTS. 

control  the  security  and  make  it  available;  but  this  does  not  necessarily 
constitute  the  transaction  a  chattel  mortgage  as  distinguished  from  a 
pledge.  Gay  v.  Moss,  34  Cal.  125. 

84.  Chattel  Mortgage. — A.,  the  owner  of  a  quartz  mill  in 
Amador  County,  executed  a  mortgage  on  the  same  to  B.     Afterwards, 

A.  purchased  at  Sacramento  a  steam  engine  and  boiler,  and,  to  secure 
the  purchase  money,  executed  to  C.  a  chattel  mortgage  on  the  same, 
and  then  transported  them  to  Amador  and  placed  them  in  the  quartz 
mill,  so  that  they  became  a  part  of  the  realty.      Held,  that  C.'s  mort- 
gage on  the  steam  engine  and  boiler  had  priority  over  the  mortgage  of 

B.  (Tibbetts  v.  Moore,  23  Cal.  208.)     If,  at  the  time  of  the  execu- 
tion and  delivery  of  a  promissory  note,  the  payor  also  gives  the  payee 
a  bill  of  sale  of  personal  property  by  way  of  mortgage  to  secure  the 
note,  and  also  delivers  possession  of  the  property,  the  payor  has  a  right 
to  have  the  property  mortgaged  applied  in  satisfaction  of  the  debt;  and 
if  the  payee  sells  any  of  the  property,  he  has  a  right  to  have  the  pro- 
ceeds or  value  applied  towards  the  satisfaction  of  the  debt.     McGarvey 
v.  Hall,  23  Cal.  140. 

85.  For  Future  Advances. — A  mortgage  given  in  good  faith 
for  the  purpose  of  securing  future  advances  expected  to  be  made,  is  a 
good  and  valid  security.     Such  mortgage  need  not  express  its  object 
on  its  face,  although  it  would  be  better  if  it  should.     But  a  mortgage 
knowingly  given  for  a  greater  sum  than  is  due,  and  not  in  good  faith, 
as  a  pretended   security  for  future  advances,  is  fraudulent  in  law  as  to 
the  creditors  of  the  mortgagor.     Fully  v.  Harloe,  35  Cal.  302. 

88.  Pledge.- — A  pledge  of  personal  property  may  be  foreclosed  by 
a  decree  of  a  court  of  equity,  in  the  same  manner,  and  with  like  effect, 
as  if  it  were  a  mortgage.  Donohue  v.  Gamble,  Cal.  Sup.  Ct.,Jul  7'., 
1869;  referring  to  Cal.  Pr.  Act,  §  246. 


CHAPTER  II. 

COMPLAINTS    FOR    NUISANCES. 

460, 

For  Erecting  a  Nuisance. 
[TITLE.] 

The  plaintiff  complains  and  alleges: 

I.  That  he  is,  and  at  all  the  times  hereafter  men- 
tioned was  possessed   of  the   house   and   lot  number 
. . . . , Street, 

II.  That  on  the  ....  day    of ,  18 . . ,   the 

defendant   erected    upon  the  lot  [No , 

Street, ],   a  slaughter  house,  and  still  main- 
tains the  same,  and  from  the  said  day  until  the  present 
time  has  continually  caused  cattle  to  be   brought  and 
killed  there  [and  state  any  other  particulars^ . 

III.  [ State  special  damage '.] 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  the  defendant  be  restrained  by  injunction 

from  erecting  or  using  the  said  building  as  a , 

or  otherwise,  to  the  nuisance  of  the  plaintiff,  or  permit- 
ing  it  to  be  so  used. 

2.  That  the  plaintiff  recover  from  the   defendant 
dollars,  damages,  and  his  costs. 

19 


FORMS    OF    COMPLAINTS. 


No.  461. 

For  Abatement  of  a  Nuisance. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is,  and  at  all  the  times  hereafter  mentioned 
was  the  owner  in  fee  of  [the  house  and  lot  No  .....  , 
........   Street,  ........  ]. 

II.  That  the  defendant  is,  and  at  all  the  said  times 
was  the  owner  in  fee  of  [the  lot  No  .....  ,  ........ 

Street,   ........  ,  adjoining  said  proper  ty\. 

III.  That  on  the  ....    day  of  ........  ,  18  .  .  ,  the 

defendant  erected  upon  his  said  lot  a  slaughter  house, 
and  still  maintains  the  same;  and  from  that  day  until 
the  present  time  has  continually  caused  cattle   to  be 
brought  and  killed  there  [and  has  caused  the  blood  and 
offal  to  be  thrown  into  the  street   opposite  the  said 
house  of  the  plaintiff,  or  as  the  case  may  be~\. 

IV.  That  the  plaintiff  has  been  compelled  by  reason 
of  the  premises  to  abandon  the  said  house,  and  has 
been  unable  to  rent  the  same. 

Wherefore  the  plaintiff  demands  judgment,  that  the 
said  nuisance  be  abated. 


NOTE. — This,  in  substance,  is  taken  from  the  New  York  Code  Com- 
missioners' Book  of  Forms. 

1.  Action  to  Abate. — The  action  to  abate  a  nuisance  is  "a  case 
in  equity,"  and  from  judgment  rendered  in  it  an  appeal  lies.  (People 
v.  Moore,  29  Cal.  427.)  An  action  for  a  nuisance  is  not  abated  or 
barred  by  a  subsequent  abatement  of  the  nuisance  by  the  plaintiff.  Call 
v.  Buttrick,  4  Cush.  345. 


FOR    NUISANCES.  29! 

2.  Building  Adjacent. — Under  the  civil  law,  if  a  man  build  a 
house  upon  land  of  his  own  and  sell  it,  neither  he  nor  a  subsequent 
grantee  can  build  on  their  land  adjacent  so  as  to  destroy  windows  which 
were  a  necessary  and  essential  part  of  the  house.     (Palmer  v.  Fleicher, 
i  Lev.  122',  i  Sid.  167;  i  Keble,  552;   Rosewell  v.  Prior,  6  Mod.  116; 
Coutts  v.  Gorham,  Mood.  <Sf  Walk.  396;  Compton  v.  Richards,  i  Price, 
27;  Story  v.  Odin,  12  Mass.  157;  see,  also,  Canham  v.  Fisk,  2  Cr.  & 
y.  126;  2  Tyrwh.  156.)     But  if  he  has  sold  the  vacant  lot  and  kept 
the  house,  without  reserving  the  benefit  of  the  lights,  the  vendee  might 
build  against  his  house.     Tenant  v.  Goodwin,  2  Ld.  Raym.  1,093. 

3.  Bridge. — The  fact  that  a  bridge  is  a  great  public  benefit  will 
not  prevent  its  being  a  nuisance,  if  it  obstruct  navigation.     ( i  Barn.  &* 
Ad.  541;  4  Ad.  &  El.  384;  Pennsylvania  v.  Wheeling  and  Belmont 
Bridge  Co.,  13  How.  U.S.  518.)     A  bridge  over  a  navigable  stream, 
erected  for  public  purposes,  and  producing  a  public  benefit,  and  leaving 
a  reasonable  space  for  the  passage  of  vessels,  is  not  a  nuisance.    (Mis- 
sissippi and  Missouri  R.R.  Co.  v.  Ward,  2  Black.  485;  Works  v.  Junc- 
tion Railroad,  5  McLean,  475;  Pennsylvania  v.  Wheeling  and  Belmont 
Bridge  Co.,  13  How.  U.S.  318.)     If  an  abutment  to  a  bridge  is  wrong- 
fully built  in  the  channel  of  a  stream,  the  remedy,  if  any  exists,  is  against 
him  by  whom  the  injury  was  committed.     (Crowell  v.  Sonoma  Co.,  25 
Cal.  313.)     The  State  of  Pennsylvania,  as  the  proprietor  of  public  works, 
suffered  special  damage  in  its  property  by  reason  of  a  bridge  across  the 
Ohio  River,  and  this  damage  continued  from  day  to  day,  was  not  capable 
of  proof  and  computation  in  each  item  thereof,  and  so  was  not  reparable 
by  the  course  of  the  common  law.     Held,  that  a  bill  in  equity  by  the 
State,  to  enjoin  the  bridge  as  a  public  nuisance,  could  be  maintained. 
Pennsylvania  v.  Wheeling  and  Belmont  Bridge  Co.,  13  How.  U.S.  518. 

4.  Corporations. — If  a  corporation  is  disturbed  in  the  enjoyment 
of  its  franchise  or  incorporeal  right,  such  a  disturbance  is  technically  a 
nuisance.     (Charles  River  Bridge  v.  Warren  Bridge,  6  Pick.  376;  Bos- 
ton Water  Power  v.  Boston  and  Wore.  R.R.  Co.,  16  Pick.  512.)    Thus, 
a  toll  bridge  corporation  may  restrain  a  city  from  unlawfully  laying  out 
its  bridge  as  a  highway.    (Cent.  Bridge  v.  Lowell,  4  Gray  (Mass.)  484.) 
So,  a  railroad  company  which  is  unlawfully  disturbed  in  the  enjoyment 
of  its  franchise,  may  maintain  a  bill  for  an  injunction  as  of  a  nuisance. 
Charles  River  Bridge  v.  Warren  Bridge,  6  Pick.  376;  Boston  and  Low- 
ell R.R.  Co.,  2  Gray  (Mass.)  i. 


FORMS    OF     COMPLAINTS. 

5.  Easement. — A  liberty,  privilege,  or  advantage  in  land,  without 
profit  existing  distinct  from  an  ownership  in  the  soil,  is  an  easement. 
(3  I'?.  279;    i  Cr abb's  Real  Prop.  125.)     So,  the  right  to  use  a  public 
highway   is   a   public   easement,     (i    Conn.    103,    132;  Smith's  Lead. 
Cos.  98.)     A  private  easement  is  a  privilege,  service,  or  convenience,  by 
prescription,  grant,  or  necessary  implication,  and-  without  profit,  as  a 
way  over  his  land,  a  gateway,  watercourse,  and  the  like.      (Kttch.    105; 
3  Cruise  Dig.  484;  Servitudes  of  Civil  Law  Inst.  2,  3;  i  Burr.  Diet.  530.) 
An  easement  may  be  created  by  grant,  or  it  may  be  acquired  by  pre- 
scription.    The  grant  may  be  either  express  or  implied.     A  reserva- 
tion of  an  easement  in  the  deed  by  which  the  lands  are  conveyed  is 
equivalent  for  the  purpose  of  the  creation  of  the  easement  to  an  express 
grant  of  the  easement  by  the  grantee  of  the  lands.     (Wagner  v.  Hanna, 
Cal.  Sup.  Ct.,  Jul.  T.,  1869.)     The  right  of  landing  with,  and  drawing 
seines  upon  another's  land  is  an  easement;  (Hart  v.  Hill,  i    Wharf. 
138;)  and,  therefore,  may  be  acquired  by  prescription,  like  a  right  of 
way.     Ang.  on  Watercourses,  77. 

6.  Injunction. — A   nuisance   existing  under  a   local   law,    if  it 
amounts  not  to  a  national  one,  will  not  be  enjoined  by  the  U.  S.  Circuit 
Court.     (Griffing  v.  Gibb,  i  Me  All.  '312.)     Although  indictment  is  the 
proper  remedy  in  the  case  of  a  public  nuisance,  yet  when  it  is  obvi- 
ously necessary  that  such  a  nuisance  should  be  immediately  suppressed, 
a  court  of  chancery  may  interfere  by  injunction  until  process  by  indict- 
ment can  be  put  in  motion.     (Ang.  on    Watercourses,  751;  Rowe  v. 
Granite  Bridge,  21  Pick.  344.)     The  plaintiff  is  entitled  to  an  injunc- 
tion at  once,  unless  the  removal  of  the  nuisance  is  physically  impossi- 
ble.    The  common  law  remedy  for  a  public  nuisance  will   not  be 
affected  by  a  statute  imposing  a  penalty  for  the  offense  unless  an  intent  is 
conceived  to  exclude  these  remedies.     (Renwick  v.  Morris,  7  Hill,  575.) 
In  what  cases  will  equity  enjoin  a  nuisance?     See  Parker  v.  Woolen 
Company,  2  Black.  U.S.  545. 

7.  Jurisdiction  of  Action  Concerning  Nuisances. — The 

statute  of  this  State,  defining  what  are  nuisances,  and  prescribing  a 
remedy  by  action,  does  not  take  away  any  common  law  remedy  in  the 
abatement  of  the  nuisances  which  the  statute  does  not  embrace.  (Stiles 
v.  Laird,  5  Cal.  122.)  The  county  courts  have  original  jurisdiction  of 
actions  to  prevent  or  abate  a  nuisance.  (People  v.  Moore,  29  Cal. 
427.)  The  action  being  a  "special  case."  (Parsons  v.  Tuolumne 
Wat.  Co.,  5  Cal.  43.)  The  district  courts  have  constitutional  jurisdic- 


FOR    NUISANCES.  293 

tion  of  cases  of  nuisances.  The  grant  of  such  jurisdiction  by  statute 
to  the  county  courts  cannot  take  away  the  constitutional  jurisdiction  of 
the  district  courts.  (Yolo  v.  Sacramento,  36  CaL  193;  Courtwright  v. 
B.  R.  A.  W.  and  M.  Co.,  30  CaL  573.)  A  court  of  chancery  cannot 
make  a  decree  to  restrain,  or  give  compensation  for  a  nuisance  or  tort 
to  real  property  lying  in  another  jurisdiction,  hence  it  cannot  entertain 
a  bill  by  one  railroad  corporation  to  restrain  another  from  doing  acts 
continually  injurious  to  the  estate  and  franchise  of  the  complainants 
by  crossing  their  railroad  and  intruding  within  their  exclusive  limits. 
(Northern  Indiana  R.R.  Co.  v.  Michigan  Central  R.R.  Co.,  1 5  How. 
U.S.  233.)  In  a  suit  for  the  abatement  of  a  nuisance,  a  court  of 
equity,  confining  its  inquiries  within  the  limits  of  its  local  jurisdic- 
tion, must  be  governed  by  the  same  rules  which  a  court  of  law  would 
act  upon  in  trying  an  indictment  for  the  same  nuisance.  (Mississippi 
and  Missouri  R.R.  Co.  v.  Ward,  2  Black.  485.)  Where  a  bill  is 
brought  to  abate  a  nuisance,  the  jurisdiction  is  tested  by  the  value  of 
the  object  to  be  gained,  by  the  bill,  and  that  object  is  the  removal  of 
the  nuisance.  (Mississippi  and  Missouri  R.R.  Co.  v.  Ward,  2  Black. 
485.)  In  cases  of  private  nuisance,  the  jurisdiction  of  courts  of  equity 
and  courts  of  law  is  concurrent,  though  many  cases  will  sustain  an 
action  at  law  which  would  not  justify  relief  in  equity.  Parker  v. 
Woolen  Company,  2  Black.  U.S.  545;  see  Am.  Const,  of  CaL  1863. 

8.  Nuisance   Defined. — Anything  which    is   injurious    to   the 
health,  or  indecent,  or  offensive  to  the  senses,  or  an  obstruction  to  the  free 
use  of  property,  is  a  nuisance,  for  which  an  action  will  lie.     (CaL  Pr. 
Act,   §   249;  Gen.  Laws  of  CaL  4,711,4,712.)     The  fact  whether  a 
structure  is  a  public  nuisance  is  a  question,  not  for  the  Court,  but  for 
the  jury.     (Gunter  v.  Geary,   i  CaL  467;  affirmed  in  People  v.  Davi- 
son,  30  Id.  383.)     All  encroachments  upon  privileges  which  are  open 
to  the  whole  community,  though  they  may  have  been  uninterruptedly 
prolonged,  are  nevertheless  liable  to  be  suppressed.     (Weld  v.  Hornby, 
7  East.  195;  Carter  v.  Murcott,  4  Burr.  2,163;  Thinmo  v.  Common- 
wealth, 4  H.  &  M.  (Va.)  57;  Johnston  v.  Irwin,  3  S.  &  Rawle,   292; 
Knox  v  Chaloner,  42  Me.  156.)     A  nuisance  never  can  be  legitimated. 
Ang.  on    Watercourses,  436;    Woolrych's  Law  of  Waters,  270;  Knox  v- 
Chaloner,  42  Me.  150;  Kenwick  v.  Morris,  3  Hill,  621;  Coates  v.  New 
York,  7  Cow.  558;  People  v.  Cunningham,   i  Den.   536;  Common- 
wealth v.  Upton,  6  Gray,  473. 

9.  Nuisance  and  Trespass — Distinction. — The  distinction 


294  FORMS    OF    COMPLAINTS. 

between  nuisance  and  trespass  is,  that  nuisance  is  only  a  consequence 
or  result  of  what  is  not  directly  or  immediately  injurious,  but  its  effect 
is  injurious,  while  trespass  is  a  direct  and  immediate  invasion  of  pro- 
perty. Ang.  on  Watercourses,  576. 

10.  Parties   Plaintiff. — Such  action  may  be  brought  by  any 
person  whose  property  is  injuriously  affected,  or  whose  personal  enjoy- 
ment is  lessened  by  the  nuisance.     (Cat.  Pr.  Act,  §  249.)     A  common 
nuisance  being  deemed  an  injury  to  the  whole  community,  every  person 
in  the  community  is  supposed  to  be  aggrieved  by  it,  and  has  the  right 
to  abate  it  without  regard  to  the  question  whether  it  is  an  immediate 
obstruction  or  injury  to  him.     (Gunter  v.  Geary,  i  Cal.  462.)     A  pri- 
vate nuisance  is  one  which  only  injures  a  particular  individual  or  class 
of  individuals,  and  can  be  abated  only  by  him  who  suffers  from  it. 
(Gunter  v.  Geary,  i  Cal.  462.)     And  an  action  to  abate  can  be  main- 
tained only  by  the  owner  in  fee  of  the  premises  injured,  against  the 
owner  in  fee  of  the  premises  on  which  the  nuisance  exists.     (Ellsworth 
v.  Putnam,  16  Barb.  568.)     A  public  nuisance  being  the  subject  of 
criminal  jurisdiction,  the  ordinary  and  regular.proceeding  at  law  is  by 
indictment  or  information  by  which  the  nuisance  may  be  abated,  and 
the    person  who  caused  it  may  be  punished.      (Gen.  Laws   of  Cal. 
\  1,524.)     If  any   particular   individual   shall   have  sustained  special 
damage  from  the  erection  of  it,  the  special  and  private  injury  resulting 
from  a  nuisance  is  the  only  ground  on  which  a  private  individual  can 
ask  for  relief  against  it.     (18  Ves.  215;  19  /</.  616;  6  John.  Ch.  439; 
12  Pet.  98;    2  Ld.  Raym.  1,163;    Mayor  of  Georgetown  v.  Alexandria 
Canal  Co.,  2  Pet.   141;   Spooner  v.  McConnell,   i  McLean,  387;  and 
see  Works  v.  Junction  Railroad,  5  Id.  425.)     Several  persons,  having 
independent  claims  to  relief,  may  join  in  a  suit  to  restrain  a  nuisance 
which  affects  the  respective  claims  of  both.     Murry  v.  Hay,  i  Barb. 
Ch.  59. 

11.  Parties   Defendant. — When  an  owner  contracts  for  doing 
certain  work  upon  his  property,  if  a  nuisance   necessarily  occurs  in 
the  ordinary  mode  of  doing  such  work,  the  owner  is  liable,  but  if  a  nui- 
sance happens  by  the  negligence  of  the  contractor  or  his  servants,  the 
contractor  alone  is  responsible.  (Chicago  City  v.  Robbins,  2  Black.  418.) 
In  an  action  of  nuisance  or  trespass  the  defendant  has  no  right  to  inquire 
into  the  good  faith  of  the  plaintiff's  possession.  -  (Eberhard  v.  Toulumne 
Water  Co.,  4  Cal.  308.)     Where  a  nuisance  is  committed  by  several, 
the  plaintiff  may  sue  any  one  of  those  who  did  the  wrong,  and  the  non- 


FOR    NUISANCES.  295 

joinder  of  the  others  cannot  be  pleaded  in  abatement,  (i  Chitt.  PL 
75;  Sutton  v.  Clark,  6  Taunt.  29.)  But  if  the  parties  committing  the 
tort  are  joint  owners  of  the  land,  and  the  tort  consisted  in  the  omission 
of  some  act  which  they  are  bound  as  such  owners  to  perform,  then  all 
must  be  joined  in  the  action,  (i  Chitt.  PL  76.)  If  one  of  two  tenants 
in  common  of  a  mill  is  guilty  of  malfeasance  by  using  it  to  the 
nuisance  of  a  stranger,  the  other  owner  (not  participating)  is  not  liable. 
Ang.  on  Watercourses,  592;  Simpson  v.  Leavey,  8  Greenl.  138. 

12.  Private  Nuisance. — Where  a  bill  against  a  private  nuisance 
does  not  show  plainly  that  complainant  is  without  a  remedy  at  law,  it  must 
be  dismissed.  (Parker  v.  Woolen  Company,  2  Black.  U.S.  545.)  A 
distillery  with  styes  in  which  large  quantities  of  hogs  are  kept,  the>  offal 
from  which  renders  the  waters  of  a  creek  unwholesome,  and  the  vapors 
from  which  render  a  dwelling  uninhabitable,  is  a  nuisance.  (Smith  v. 
McConathy,  i-i  Mo.  517.)  It  is  not  necessary  that  the  corruption  of  the 
atmosphere  be  such  as  to  be  dangerous  to  health;  it  is  sufficient  that  the 
effluvia  are  offensive  to  the  senses,  and  render  habitations  uncomfort- 
able. (Eames  v.  N.  E.  Worsted  Co.,  n  Met.  572.)  A  dense  smoke, 
laden  with  cinders,  liable  to  continue  twelve  hours  twice  a  month,  and 
to  penetrate  houses  at  distances  of  from  forty  to  two  hundred  feet,  in  a 
part  of  a  town  occupied  by  mechanics  for  their  homes  and  for  grades 
requiring  a  certain  amount  of  smoke,  is  a  nuisance.  (Ross  v.  Butler, 
4  C.  E.  Green,  294.)  But  in  view  of  the  damage  to  very  large  iron 
works  which  an  injunction  would  cause,  and  where  the  injury  could  be 
compensated  for  at  law,  an  injunction  ought  not  to  be  granted.  (Rich- 
ards' Appeal,  57  Penn.  105;  see,  also,  Rhodes  v.  Dunbar,  57  Penn.  274.) 
Where  defendants  built  a  platform  in  front  of  plaintiff's  lot,  and  on  his 
side  of  the  way,  as  plaintiff  presumptively  owned  to  the  middle  of  the 
street,  he  could  maintain  a  private  suit.  Higbee  v.  Camden  and  Am- 
boy  R.R.  Co.,  4  C.  E.  Green,  276. 

13.  Private  Nuisance — Allegations. — In  an  action  for  a  pri- 
vate nuisance  it  is  not  necessary  to  allege  or  prove  any  special  damage; 
but  in  a  private  action  for  a  public  nuisance  special  damages  must  be 
averred  and  proved.     (Smiths.  McConathy,  n  Mo.  517.)     It  becomes 
the  gist  of  the  action.     Baker  v.  Boston,  12  Pick.  196. 

14.  Public  Gaming  House. — A  public  gaming  house  is  a  nui- 
sance.    (See  United  States   v.  Ismenard,   i   Cranch  C.  Ct.   150.)     A 


296  FORMS   OF    COMPLAINTS. 

public  bowling  alley,  kept  in  connection  with  a  lager  beer  saloon  in  a 
populous  town,  is  not  per  se  a  public  nuisance.  State  v.  Hall.  3 
Vroom.  158. 

15.  Public  Nuisances. — The  following  have  been  held  pub- 
lic nuisances,  viz:     The  erection  of  a  house  on  a  highway..    (Gun- 
ter  v.  Geary,   i    Cal.   467;  People  v.  Davidson,   30  Id.   383.)     The 
appropriation  of  that  part  of  the  river  or  bay  below  low  water  or  low 
tide  is  a   public   nuisance.     (Gunter  v.   Geary,    i    Cal.    462.)     Any 
obstruction  to  the  navigation  of  a  public  navigable  stream,  is,  upon 
established  principles,  a  public  nuisance.     (Mayor  etc.  of  Georgetown 
v.  Alexandria  Canal  Co.,  12  Pet.  91.)     It  does  not  follow  as  a  legal 
concjusion  that  a  wharf  erected  below  high  water  mark  in  tide  waters, 
and  upon  the  soil  thereunder  belonging  to  the  State,  is  a  public  nui- 
sance, or  an  injury  to  commerce  and  navigation.     Whether  such  a 
wharf  is  a  public  nuisance  is  a  question  of  facts.     (People  v.  Davi- 
son,  30  Cal.  379.     An  injunction  will  be  granted  to  restrain  the  erec- 
tion of  a  wharf  in  tide  waters  where  it  is  a  public  nuisance,  or  will  be 
followed  by  some  form  of  irreparable  damage.     (People  v.  Davison, 
30  Cal.  379.)    A  common  scold  is  a  nuisance.     (See  United  States  v. 
Boyall,  3  Cranch  C.  Ct.  620.)     To  keep  a  large  quantity  of  gunpowder 
near  where  persons  dwell  is  a  nuisance.     (Myers  v.  Malcolm,  6  Hill, 
292;  Borden  v.  Crocker,   10  Pick.  388;  Lansing  v.  Smith,  4  Wend.  9; 
Harrisson  v.  Sterrell,  4  Har.  &  McHen.  540;  Story  v.  Hammond,  4 
Ohio,  376;  Shaw  v.  Cummisky,  7  Pick.  76.)     A  house  on  fire,  or  those 
in  the  immediate  vicinity  which  serve  to  communicate  the  flames,  is  a 
nuisance  which  it  is  lawful  to  abate;  and  the  private  rights  of  the  indi- 
vidual yield  to  considerations  of  general  convenience  and  the  interest 
of  society.     (Surocco  v.  Geary,  3  Cal.  73.)     The  constitutional   pro- 
vision requiring  payment  for  private  property  taken  for  public  use  does 
not  apply.     (Id.}     Nor  can  one  who  abates  such  a  nuisance  be  held 
personally  responsible  for  trespass.     Id. 

16.  Public  Nuisance — when  Action  Lies. — An  action  will 
not  lie  for  damages  for  a  public  nuisance,  unless  plaintiff  has  sustained 
some  special  damage.     Comyns.  Dig.  Nuisances;  9  Code  Rep.  112;  2 
T.  R.  667;  ii  East.  61;  12  Id.  432;  ^M.&S.  101;  2  Bing.  156; 
Stetson  v.  Faxon,   19  Pick.   147;  Pittsburg  v.  Scott,   i  Penn.  St.  Rep. 
309;  Thayer  v.  Boston,  19  Pick.  511;  Myers  v.  Malcolm,  6  Hill,  292. 

17.  Remedy. — By  judgment,  the  nuisance  may  be  enjoined  or 


FOR    NUISANCES.  297 

abated  as  well  as  damages  recovered.  (Cal.  Pr.  Act,  §  249.)  To 
entitle  a  party  to  an  injunction  in  a  case  of  a  nuisance,  the  injury 
to  be  restrained  must  be  irremediable,  and  such  as  cannot  be  adequately 
compensated  by  damages.  (Middleton  v.  Franklin,  3  Cal.  241.)  In 
an  action  to  abate  a  nuisance  damages  are  only  an  incident  to  the 
action,  and  the  failure  to  recover  them  does  not  affect  the  question  of 
costs.  (Hudson  v.  Doyle,  6  Cal.  102;  affirmed  in  Courtright  v. 
B.  R.  A.  W.  M.Co.,  30  Id.  567.)  Courts  of  equity,  pursuing  the  anal- 
ogy of  the  law  that  a  party  may  maintain  a  private  action  for  special 
damages,  even  in  the  case  of  public  nuisance,  will  grant  an  injunction 
against  a  public  nuisance  at  the  instance  of  a  private  person,  where  he 
is  in  imminent  danger  of  suffering  a  special  injury,  for  which,  under 
the  circumstances  of  the  case,  the  law  would  not  afford  an  adequate 
remedy.  But  the  plaintiff  in  such  case,  to  maintain  his  suit  in  equity, 
must  aver  and  prove  an  individual  injury.  (19  Ves.  616;  6  John.  Ch. 
439;  Mississippi  and  Missouri  R. R.  Co.  v.  Ward,  2  Black.  485.) 
Where  an  individual  is  damaged  by  a  public  nuisance,  he  has  the  same 
remedy  as  when  injured  by  a  private  nuisance.  (Welton  v.  Martin, 
7  Mo.  307;  Stetson  v.  Faxon,  19  Pick.  147;  Thayer  v.  Boston,  19  Pick. 
511;  Shaw  v.  Cummisky,  7  Pick.  76;  Holm  an  v.  Townsend,  13  Met. 
297.)  And  plaintiff  must  prove  that  the  damage  he  has  sustained  "is 
not  common  to  others."  Co.  Lit.  56,  a;  19  Pick.  155. 

18.  Riparian  Proprietor. — Where  a  river  is  made  a  boundary 
to  the  land,  the  grantee  becomes  riparian  proprietor,  and  is  entitled  to 
the  land  the  river  cpvers,  ad  filum  medium  aqua,  and  any  (in  case  of  a 
grant)  subsequent  grantee  under  the  same  description,  is  alike  entitled 
Ang.  on    Watercourses,  19;  People  v.  Canal  Appraisers,  13  Wend.  355, 
17    Wend.   571;  Ex  parte  Jennings,  6  Cow.  548;   Commissioners  v. 
Kempshall,  26  Wend.  404. 

19.  Rules  for  Abatement  of  Nuisance. — Rules  which  govern 
a  court  of  equity  in  a  suit  for  the  abatement  of  a  nuisance.     Missis- 
sippi and  Missouri  Railroad  Company  v.  Ward,  2  Black.  U.S.  485. 

20.  Steam  Engine  in  Cellar. — The  erection  of  a  steam  engine 
and  machinery  and  a  grist  mill  in  the  cellar,  under  an  auction  store, 
held  not  to  be  such  in  injury  as  to  require  a  restraining  power  of  the 
Court;  at  least,   not  until  the  question  of  nuisance  should  be  deter- 
mined by  a  jury,  and  even  then  the  remedy  at  common  law  is  adequate. 
Middleton  v.  Franklin,  3  Cal.  241;  see  Saltonstall  v.  Banker,  8  Gray 
(Mass.)  195. 


298  FORMS    OF    COMPLAINTS. 

21.  Street  Railroads. — Where  a  railroad  track  is  on  a  public 
street,  owners  of  property  in  the  vicinity,  to  sustain  a  complaint  against 
its  construction,  must  establish  that  it  is  a  public  nuisance,  and  that  they 
have  sustained  special  damage.     (Black  v.  Phil,  and  Reading  R.R.  Co., 
58  Penn.  249.)     Where  a  company  is  authorized  by  law  to  construct  a 
street  railroad,  with  switches  and  turnouts,  the  presumption  of  law  is 
that  the  switches  and  turnouts  are  necessary,  and  the  burden  of  proving 
that  they  are  a   nuisance  is  cast  on  the  plaintiff.     Carson  v.  Cent. 
R.R. Co.,  35  Cal.  325. 

22.  Verdict. — In  an  action  to  abate  a  nuisance,  a  general  verdict 
in  favor  of  the  plaintiff  is  sufficient  to  sustain  a  judgment  abating  the 
same.     (Blood  ».  Light,  31  Cal.  115.)     So  if  special  findings  are  not 
inconsistent  with  it.     Id. 

23.  When  Action  Lies. — In  general,  courts  of  equity  do  not 
take  jurisdiction  in  cases  of  nuisance  until  the  party  aggrieved  has  estab- 
lished his  right  by  an  action  at  law,  unless  some  special  ground  is  shown ; 
such  as  irreparable  injury,  multiplicity  of  suits,  or  the  like.     Review- 
ing many   authorities,  (Parker   v.    Winnipiseogee    Lake    Cotton   and 
Woolen    Co.,    2   Black.    545 ;    Irwin   v.    Dixon,    9    How.    U.  S.    10; 
Pennsylvania     v.    Wheeling    and    Belmont    Bridge    Co.,     13    Hoiv. 
U.S.  5,  1 8,  561 ;)  in  which  authorities  may  be  found  the  history  of  the 
jurisdiction  of  courts  of  equity  in  these  cases. 

24.  Who  Liable. — The  author  of  a  nuisance  is  answerable  for 
all  the  damages  thereof,  and  after  a  recovery  of  damages  for  its  erection 
another  action  may  be  maintained  for  its  continuance.     Each  continu- 
ance is  a  new  nuisance.     (Ang.  on  Watercourses,  587.)     So  that,  if  a 
person  erects  a  mill,  to  the  nuisance  of  another,  every  occupier  of  it 
afterwards,  who  permits  a  continuance  of  the  nuisance,  is  subject  to  an 
action.      (Ang.  on    Wafer  courses,   588,  and  cases  there  cited;  see  Ells- 
worth v.  Putnam,  16  Barb.  565.)     If  the  purchaser  be  ignorant  of  the 
consequences  and  damage  occasioned  he  must  have  notice  of  it,  and  a 
request  must  be  made  to  remove  trie  nuisance  before  an  action  can  be 
brought.      (Ang  on   Watercourses,   590.)     But,  of  course,   where  the 
nuisance  is  committed  by  the  defendant  himself,  no  notice  or  request 
of  removal  before  action  is  necessary.      (Id.}    The  person  whose  duty 
it  was  to  remove  the  nuisance,  or  to  keep  a  hole  protected,  is  alone 
liable.     (Blake  v.  Ferris,  i  Seld.  48.)     The  party  doing  the  work  and 
his  servants  are  liable.    (Id.;  Lougherz;.  Painter,  5  Barn.&  Cres.  560; 


FOR    NUISANCES.  299 

Milligan  v.  Wedge,  12  Adol.  &  Ellis,  737.)  A  landlord  is  liable  to  his 
tenant  for  injury  from  the  bursting  of  a  defective  sewer.  Alston  v. 
Grant,  2\Eng.  L.&  Eq.  122;  Tenants.  Goldwin,  2  Ld.  Raym.  1,089; 
Vaughn  v.  Menlove,  2  Bing.  (N.C.)  468;  Cooper  v.  Barb,  3  Taunt. 
99;  Andrew  v.  Pullen,  10  M.  &.  W.  321. 


No.  462. 

lii.     For  Continuance  of  a  Nuisance. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  he  is,  and  at  all  the  times  hereafter  men- 
tioned, was,  possessed  of  [the  house  and  lot,  No , 

Street, ]. 

II.  That  ever  since  the  ....  day  of ,  1 8 .  . , 

the  defendant  has  maintained  [a  slaughter  house]  on  the 
[lot  No , Street, ,  etc.,  etc.,  as  in 

the  preceding  form\ . 

III.  That  on  the  ....  day  of ,  1 8 .  . ,  the  plaintiff 

requested  the  defendant  to  remove  the  said  [slaughter 
house,  or  to  cease  using  it  for  that  purpose],  but  he  has 
not  done  so. 

IV.  [State  special  damagel\ 

[Demand  of  Judgment.] 


25.  Allegation  of  Request. — By  some  of  the  courts  of  New 
York,   a    request   is    held  necessary  against  a  mere  continuer    of  a 
nuisance.     (Hubbard  v.  Russell,  24  Barb.  407;  but  see,  contra,  Brown  v. 
Cayuga  and  Susq.  R.R.,  12  N.Y.  492.)     I  cannot,  however,  upon  prin- 
ciple, see  any  reason  in  the  rule,  if  there  be  such  a  rule,  which  requires 
notice  to  discontinue  the  doing  an  unlawful  act. 

26.  Allegation  where  Land  has  been  Transferred. — That 


3<X>  FORMS    OF    COMPLAINTS. 

on  or  about  the day  of  . ". ,  i 8 . . , }he  defendant  A.  B.  con- 
veyed said  premises  to  the  defendant  C.  D.,  who  ever  since  has  been 
in  possession  of  the  same,  and  wrongfully  maintains  said  nuisance.  That 
on  the  ....  day  of ,  1 8 . . ,  the  plaintiff  requested  him  to  re- 
move and  abate  the  same. 

27.  Continuance. — Every  continuance  of  an  obstruction  is  in 
itself  an  offense.  (Renwick  v.  Morris,  7  Hill,  575.)  The  action  lies 
against  him  who  erects  a  nuisance,  and  against  him  who  continues  a 
nuisance  erected  by  another.  (Staple  v.  Spring,  10  Mass.  72;  Hodges 
v.  Hodges,  5  Met.  205.)  And  every  use  of  an  erection  which  is  a  nui- 
sance is  a  new  nuisance.  And  one  who  continues  a  nuisance  may  be 
sued  without  notice,  or  a  request  to  him  to  abate  it.  Conhocton  Stone 
Co.  v.  Buffalo,  N.Y.,  and  E.  R.R.  Co.,  52  Barb.  390. 


No.  463. 

iv.   For  Obstructing  a    Way. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is,  and  at  the  time  hereafter  mentioned 

was  possessed  of  a  house  in  the  Town  of , 

County   of [or  describe  premises],  and  that 

the  same  fronted  upon  a  certain  road  or  highway. 

II.  That  he  was  accustomed  to  pass  [with  vehicles, 
or  on  foot],  along  that  certain  highway  [or  private  way] 
leading  to  his  said  house. 

III.  That  on  the day  of ,  18 .  .,  the 

defendant  obstructed  the  said  highway,  so  that  plaintiff 
could  not  pass  [with  vehicles,  or  on  foot,  as  the  case 
may   be~\,    along   said    highway,    and    has    ever   since 
obstructed  the  same. 

IV.  \State  special  damage,  if  any.~\ 

[Demand  of  Judgment.] 


FOR    NUISANCES.  3OI 

28.  Action,  when  it  Lies. — An» action  to  abate  a  nuisance  in 
a  highway  by  water,  obstructing  the  free  use  of  plaintiff's  property,  will 
lie  the  same  as  to  abate  a  nuisance  in  a  highway  by  land.     (Blank  v. 
Klumpke,  29  Cal.  156.)     If  the  free  use  of  his  property  is  interfered 
with  he  may  have  his  private  action  to  abate  the  same.     Id.;  cited  as 
authority  in  Hastings  v.  Stark,  36  Cal.  122. 

29.  Bay  or  River  as  a  Highway. — All  that  part  of  a  bay  or 
river  below  low  water  or  low  tide,  is  a  public  highway,  common  to  all 
citizens,  and  if  any  person  appropriate  it  to  himself  exclusively,  the 
presumption  is  that  it  is  a  detriment  to  the  public.     Gunter  v.  Geary, 
i  Cal.  462. 

30.  Building  on  a  Street. — A  person  building  a  storehouse  on 
a  street,  who,  in  consequence  of  the  city's  raising  the  carriage-way  of 
the  streets,  raises  a  sidewalk  so  as  to  make  it  conform  to  the  carriage 
way,  thereby  obtaining  vaults  and  an  area  for  the  benefit  of  his  building, 
does  not  do  a  public  work  nor  relieve  himself  from  the  penalty  of 
making  a  nuisance,  if  a  nuisance  is  made  by  what  he  does.     (Robbins 
v.  Chicago   City,  4    Wall.  U.S.   657.)      Buildings  erected   on  public 
grounds  or  highways  acquire  no  right  either  on  account  of  time  or 
expenditure.     (Philadelphia  v.  Phil,  and  Reading  R.R.  Co.,  58  Penn. 
253.)     It  is  a  nuisance  to  erect  a  building  on  a  highway.     Gunter  v. 
Geary,  i  Cal.  467. 

31.  Impediment  in  Street. — Defendants  dug  a  deep  hole  on 
their  premises  close  to  the  line  of  a  public  street,  and  threw  out  earth 
and  stones  upon  the  sidewalk.     The  plaintiff  in  trying  to  pass  the  ob- 
struction on  the  sidewalk,  went  a  little  upon  the  defendants'  land,  fell 
into  the  hole,  and  was  injured.    It  was  a  dark  night,  and  defendants  had 
provided  no  light.     The  plaintiff  was  using  due  care.     Held,  that  the 
fact  that,  under  the  above  circumstances,  he  went  upon  defendants'  land, 
and   was  injured  there,  did  not  bar  his  action.      Vale  v.  Bliss,   50 
Barb.  358. 

32.  Injunction. — If  a  plaintiff  has  suffered  a  particular  injury 
from  the  obstruction  of  a  public  way,  a  bill  will  lie  for  an  injunction. 
Cook  v.  Mayor  of  Bath,  Law  Rep.  6  Eq.  177;    Bateman  v.  Gray,  Law 
Rep.  6  Eq.  215. 

33.  Nuisances  on  Public  Streets   and   Highways. — If  a 

city,  in  the  exercise  of  its  right  to  grade  highways,  creates  a  stagnant 
pond    on  a  man's  land,  close  to  his  house,  it  is  liable  in  damages. 


3<D2  FORMS   OF    COMPLAINTS. 

(Nevins  v.  City  of  Peoria,  41  Til.  503.)  The  breaking  up  of  the  streets 
of  a  town  for  the  purpose  of  laying  gas  pipes,  without  lawful  authority, 
will  be  enjoined  in  equity.  (Sheffield  Gas  Consumers  Co.,  3  De  G.  M. 
&  G.  304;  not  followed,  Attorney  General  v.  Cambridge  Consumers 
Gas  Co.,  Law  Rep.  6  Eq.  282.)  A  toll  gate  erected  on  a  public  high- 
way which  belongs  to  the  State  or  people  is  a  nuisance,  and  may  be 
abated  as  such.  Eldorado  Co.  v.  Davison,  30  Cal.  520;  Wales  v. 
Stetson,  2  Mass.  143. 

34.  Ordinary  Care  to  Avoid. — In  cases  of  obstruction  to  high- 
ways, the  plaintiff  cannot  recover  if  he  did  not  use  ordinary  care  to 
avoid  the  injury.     (Smith  v.  Smith,  2   Pick.  621;  Irwin  v.  Spring,  6 
Gill.  200.)     The  plaintiff  is  not  required  to  plead  or  prove  any  facts 
giving  him  a  title  to  the  way.     If  the  defendant  has  any  right  to  inter- 
rupt him,  that  is  a  matter  of  defense,  and  until  he  proves  such  right  he 
is  a  wrong-doer.     See  St.  John  v.  Moody,  2   Lev.  148;    i    Vent.  274; 
Winford  v.  Wollaston,  3  Lev.  266. 

35.  Relief. — That  a  demand  for  damages  for  obstructing  plaintiff's 
way,  and  that  defendants  be  compelled  to  open  the  way,  may  be  united, 
see  Getty  v.  Hudson  River  R.R.  Co.,  6  How.  Pr.  269. 

36.  Right   of   Way. — A  right  of  way  must  be  by  grant  or  pre- 
scription.   Mere  convenience  gives  no  right.  (Seabrook  v.  King,  i  N. 
&  McCord  (S.C.)  140;  Lawton  v.  Rivers,  2  McCord  (S.C.)  445.)    To 
the  creation  of  a  right  of  way  that  amounts  to  an  easement,  and  not 
merely  to  a  right  of  way  in  gross,  two  tenements  are  necessary,  the  domin- 
ant to  which  the  right  of  way  belongs,  and  the  servient  upon  which  the 
obligation  rests.     ( Wash,  on  Eas.  3;    Wolfe  v.  Frost,  4   Sand.  Ch.  72) 
In  the  one  there  is  and  in  the  other  there  is  not  a  dominant  tenement, 
though  a  right  of  way  may  be   granted  in    gross.     This  is  never  pre- 
sumed when  it  can  fairly  be  presumed  to  be  appurtenant  to  some  other 
estate.     ( Wash,    on   Eas.   28.)     And  it  must  be  granted  in  writing, 
describing  the  interest  conveyed.     Wagner  v.  Hanna,  Cal.  Sup.  Ct., 
Jul.  T.,  1869. 

37.  Special  Damages. — In  a  private  action  for  obstructing  a 
public  highway,  some  special  damage  must  be  laid,  though  it  is  other- 
wise in  respect  to  a  private  way.     Lansings.  Wiswall,  5  Den.  213. 


FOR    NUISANCES.  303 

/ 

JVo.  464. 

v.    For  Diverting   Water  from  a  Quartz  Mill, 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is,  and  at  the  time  hereafter  mentioned 
was  possessed  of  a  quartz  mill  capable  of  running  five 

stamps,  situated   [state  w/iere],  on Creek,  in 

this  State. 

II.  That  for  more  than  five  years  previous  to  the  said 
time  hereafter  mentioned,  the  plaintiff  has  had  the  undis- 
puted usufructuary  right  to  the  use  of  all  the  water  of  said 

creek. 

« 

III.  That  on  the  ....  day  of ,   18.  .,  the 

defendant  erected  a  dam  across  the  bed  of  said  creek 
above  the  said  mill,  and  thereby  diverted  the  water 
from  the  said  mill,  and  ever  since  has  continued  the 
said  dam  and  obstruction  to  the  free  flow  of  the  water 
in  said  creek,  so  that  less  water  ran  into  the  plaintiff 's 
mill. 

IV.  That  by  reason  thereof  the  plaintiff  has  been 
unable  to  run  more  than  two  stamps;  whereas  before 
the  said  diversion  of  water,  he  was  able  fo  run  five 
stamps,  to  the  damage  of  the  plaintiff dollars. 

[Demand  of  Judgment. \ 

38.  Actions  for  Diversion  of  Water. — Such  actions  are  in 
the  nature  of  actions  for  the  abatement  of  nuisances,  and  may  be  main- 
tained by  tenants  in  common,  in  a  joint  action.      Parker  v.  Kilham,  8 
Cal.  77. 

39.  Actual  Appropriation. — A  water  right  is  only  acquired  by 


304  FORMS    OF     COMPLAINTS. 

an  actual  appropriation  and  use  of  the  water.  The  property  is  not  in 
the  corpus  of  the  water,  but  is  only  in  its  use.  (Eddy  v.  Simpson,  3  Cal, 
249.)  A  right  may  be  acquired  to  its  use  which  will  be  regarded  and 
protected  as  property.  (Kidd  v.  Laird,  15  Cal.  179.)  But  this  right 
carries  with  it  no  specific  property  in  the  water  itself.  (McDonald  v. 
Askew,  29  Cal.  206.)  Until  a  claimant  is  himself  in  the  position  to  use 
the  water,  the  water  right  does  not  exist  in  such  sense  that  the  mere 
diversion  and  use  of  the  water  by  another  is  a  ground  of  action  for  the 
conversion.  Kimball  v.  Gearhart,  12  Cal.  29. 

40.  Allegation  of  Right  by  Prior  Appropriation. — That 

on  the  ....  day  of ,  1 8 . . ,  and  before  the  diversion  hereafter 

mentioned,  the  plaintiff  appropriated  all  the  waters  of  said  gulch  [or 
creek]  to  his  use,  and  from  that  time  till  the  time  hereafter  mentioned, 
has  enjoyed  the  uninterrupted  use  of  the  same. 

41.  Appropriation. — The  natural  water  in  a  ravine  belongs  to  the 
first  appropriator  thereof,    and  for  either  a  division  or  appropriation 
thereof  an  action  will  lie.     (Hoffman  v.  Stone,  7  Cal.  49;  affirmed  in 
Merced  Mi.  Co.  v.  Fremont,  Id.  325;  Butte  Canal  and  Ditch  Co.  v. 
Vaughn,  n  Id.  150.)     And  an  appropriation  for  mill  purposes  stands 
on  the  same  footing.    (McDonald  v.  Bear  River  Co.,  13  Cal.  220.)   And 
such  appropriation  cannot  be  constructive.     (Kelley  v.  Natoma  Water 
Co.,  6  Cal.  105.)     And  it  must  be  for  some  useful  purpose.     (Weaver 
v.  Eureka  Lake  Co.  15  Cal.  271;  Davis  v.  Gale,  32  Cal.  26;  McKin- 
ney  v.  Smith,  21  Cal.  374. 

42.  Appropriation,  how  Effected. — The  erection  of  a  dam 
across  a  natural  water  course  is  an  actual  appropriation.     (Kelley  v. 
Natoma  Water  Co.,  6  Cal.  105.)     Surveys,  notices,  stakes,  and  blazing 
of  trees,  followed  by  work  and  actual  labor,  without  abandonment,  will 
in  every  case  where  the  work  is  completed  give  title  to  the  water  over 
subsequent  claimants.     (Kimball  v.  Gearhart,  12    Cal.  27.)     A  notice 
of  intention  to  appropriate  the  waters  of  a  stream  is  evidence  of  posses- 
sion, but  of  itself  alone  is  not  sufficient.     (Thompson  v.  Lee,  8  Cal. 
275.)     The  mere  act  of  commencing  a  ditch,  with  the  intention  of  ap- 
propriating, is  not  sufficient  of  itself.    Kimball  v,  Gearhart,  12  Cal.  27. 

43.  Aqueduct  from  Spring. — An  aqueduct  from  a  spring  in  a 
separate  parcel  of  land,  to  a  mill  belonging  to  the  same  owner,  with  the 
right  to  use  the  water  from  the  spring,  was  reserved  by  implication  to 


FOR    NUISANCES.  305 

the  grantor  as  against  his  grant  of  that  parcel  of  land  by  metes  and 
bounds,  without  reservation  of,  or  reference  to  the  easement.  Seymour 
v.  Lewis,  2  Beas.  Ch.  439;  citing  Nicholas  v.  Chamberlain,  Cro.  Jac. 
121 ;  Lampman  v.  Milks,  21  N.Y.  505. 

44.  Diversion  a  Nuisance. — To  turn  aside  a  useful  element 
from  premises  is  as  much  a  nuisance  as  to  turn  upon  them  a  destruc- 
tive element.     (Parke  v.  Kilham,  8  Cat.  77.)     It  is  a  private  nuisance. 
(Tuolumne  Wat.  Co.  v.  Chapman,  8  Cal.  397.)     So,  a  ditch  to  carry 
away   water,  which  was    rightfully  flowing  to  a  mining  claim,  is   as 
much  a  nuisance  as  a  dam  to  flood  it.     Parke  v.  Kilham,  8  Cal.  77; 
Yolo  Co.  v.  City  of  Sacramento,  36  Cal.  193. 

45.  Diverting  Water. — An  action  will  lie  by  the  riparian  pro- 
prietor for  diverting  water  from  a  stream  when  the  same  is  needed  for 
agricultural  purposes.     Proprietors  above  him  may  use  the  water  for  irri- 
gation, mills,  or  otherwise,  but  must  return  it  to  its  natural  channel. 
For    the    law    on    this    subject.       (Gale    <5f    Wheat,   on   Easements, 
234;     see,   also,   Strutt    v.    Bovington,    5   Esp.   56;     Greenslade   v. 
Holliday,  6  Bing.  379;    Evans  v.  Merryweather,  3  Scam.  496;   Wes- 
ton  v.  Alden,  7  Mass.  136;  Ingraham  v.  Hutchinson,  2  Conn.  584; 
Colburn  v.  Richards,  13  Mass.  420;  Anthony  v.  Lapham,  5  Pick.  175; 
Blanchard  v.  Baker,  8  Green.  Rep.  253;  Arnolds.  Fout,  12  Wend.  330; 
Wadsworth  v.   Tillottson,   15  Conn.  366.)     The  right  of  irrigation  is 
limited  by  the  fact  whether  the  quantity  of  water  in  the  stream  is 
materially  lessened.     The  use  must  be  such  as  returns  the  water  to  the 
channel,  and  does  not  materially  lessen  its  volume,  so  that  the  proprietor 
below  may  have  enough  for  his  purposes.     See  Ang.  on   Watercourses, 
122;  consult,  also,  Strutt  v.  Bovington,  5  Esp.  56;  Greenslade  v.  Holli- 
day, 6  Bing.  379;  Gale  <&•  Wheat,  on  Easements,  284;  Evans  v.  Merry- 
weather,  3  Scam.'  496;  Weston  v.  Alden,  7  Mass.   136;  Ingraham  v. 
Hutchinson,  2  Conn.  584;  Colburn  v.  Richards,  13  Mass.  420;  Anthony 
v.    Lapham,   5  Pick.   175;  Blanchard  v.    Baker,   8  Greenlf.  R.  253; 
Arnold  v.  Fout,  12  Wend.  330;  Wadsworth  v.  Tillotson,  15  Conn.  366. 

46.  Easements. — Every  person  through  whose  land  a  natural 
watercourse  runs  has  a  right  publici  juris  to  the  benefit  of  it,  to  all  the 
useful  purposes  to  which  it  may  be  applied,  and  no  proprietor  of  land 
on  the  same  watercourse,  either  below  or  above,  has  a  right  unreason- 
ably to  divert  it  from  flowing  into  his  premises,  or  obstruct  it  in  passing 
from  them,  or  to  corrupt  or  destroy  it.     It  is  inseparably  annexed  to  the 

2O  f 


306  FORMS    OF     COMPLAINTS. 

soil,  not  as  an  easement  nor  as  an  appurtenance,  but  as  parcel.  Use 
does  not  create  it;  and  disuse  cannot  destroy  or  suspend  it.  Johnson 
v.  Jordan,  2  Met.  239;  Tyler  v.  Wilkinson,  4  Mas.  397;  Embrey  v. 
Owen,  6  Exch.  369;  Crossley  v.  Lightowler,  Law  Rep.  3  Eq.  296. 

47.  Injury  must  be  Continuing. — No  equitable  remedy  can 
be  had  for  a  mere  past  diversion  of  a  watercourse,  but  when  the  injury 
is  continuing,  relief  may  be  sought  in  equity.     (Tuolumne  Wat.  Co.  v. 
Chapman,  8  Cal.  392.)     Where  the  complaint  alleged  that  the  defend- 
ants had    dug  a  mining  ditch  above  one  previously  constructed  by 
defendants,  and  had   thereby  diverted  the  water  of  the  stream  from 
plaintiffs'  ditch,  but  did  not  aver  that  the  injury  was  continuing,  or  threat- 
ened to  be  continued,  or  likely  to  be  continued,  it  was  sufficient  for  the 
recovery  of  damages,  but  not  for  an  injunction.     Coker  v.  Simpson,  7 
Cal.  340. 

48.  Land  Bounded  by  Pond. — When  land  conveyed  bounding 
upon  a  lake  or  pond,  if  it  is  a  natural  pond,  the  grant  extends  only  to 
the  water's  edge.     {Ang.  on   Watercourses,  40;  West  Roxbury  v.  Stod- 
dard,  7  All.  167.)  But  if  it  is  an  artificial  pond,  like  a  mill  pond,  caused 
by  the  flowing  back  of  the  water  of  the  river,  the  grant  extends  to  the 
middle  of  the  stream  in  its  natural  state.     (State  v.  Gilmanton,  9  N.H. 
491;  Hathorn  v.  Stinson,  i  Fairf.  238;  Smith  v.  Miller,  5  Mas.  196; 
Robinson  v.  White,  42  Me.  209;  Lowell  v.  Robinson,  16  Me.  357;  see 
Ang.  on  Watercourses,  41,  and  cases  there  cited.)     Plaintiffs  owned  the 
water  of  an  artificial  mill  pond  two  hundred  years  old.     Defendants  cut 
and  carried  away  ice  from  the  same.     Both  parties  claimed  title  to  the 
land  covered  by  said  pond.  Held,  that  although  defendants  owned  to 
the  middle  of  the  original  stream,  they  were  liable,  having  no  more 
right  to  take  the  ice  than  they  would  have  had  to  divert  the  water. 
Mill  River  Woollen  Manufacturing  Co.  v.  Smith,  34  Conn.  462. 

49.  Prescription. — Rights  to  the  use  of  water  become  fixed  after 
five  years'  appropriation  of  the  same.     (Crandell  v.  Woods,  8  Cal.  136.) 
And  the  use  of  water  for  the  time  limited  by  statute,  within  which  an 
action  be  commenced  to  determine  the  right  to  it,  raises  a  presumption 
of  title.     (American  Co.  v.  Bradford,  27  Cal.  360.)     But  the  burden  of 
proving  possession  for  five  years  rests  on  the  party  claiming  the  right  by 
prescription.     Id. 

50.  Prior  Possession. — The  foundation  of  the  right  to  water  is 
the  first  possession,  and  this  right  is  usufructuary,  and  consists  not  so 


FOR    NUISANCES.  307 

much  in  the  fluid  as  in  its  use.  (Eddy  v.  Simpson,  3  Cal.  249.)  The 
first  appropriates  of  water  of  a  stream  has  a  right  to  its  use  and  enjoy- 
ment to  the  extent  of  his  original  appropriation;  (Butte  Canal  and 
Ditch  Co.  v.  Vaughan,  n  Cal.  143;)  for  mining  purposes;  (Bear  Riv. 
and  Auburn  Wat.  and  Min.  Co.  v.  New  York  Min.  Co.,  8  Cal.  327;) 
or  for  mill  purposes;  (Ortman  v.  Dixon,  13  Cal.  33;)  or  for  gardening 
purposes.  (Rupley  v.  Welch,  23  Cal.  452.)  And  that  right  is  not  aban- 
doned by  turning  it  into  its  natural  water  course,  and  mingling  it  with 
the  natural  stream,  to  conduct  it  to  another  point  below.  (Butte  Canal 
and  Ditch  Co.  v.  Vaughan,  n  Cal.  143.)  Nor  for  afterwards  changing 
the  use  to  which  he  first  applied  the  water.  Davis  v.  Gale,  32  Cal.  27; 
McDonald  v.  Bear  Riv.  Co.,  13  Cal.  220;  Maeris  v.  Bicknell,  7  Cal.  261. 

51.  Possession,  how  Alleged. — An  averment  in  the  complaint 
of  possession  of  the  land  and  mill  is  sufficient  against  a  trespasser,  with- 
out averring  riparian  ownership  or  prior  appropriation  of  the  water. 
(McDonald  &  Blackburn  v.  Bear  River  and  Auburn  Water  and  Min- 
ing Co.,  13  Cal.  220;  Leigh  &  Co.  v.  Ind.  Ditch  Co.,  8  Cal.  323.)     A 
complaint  alleging  that  plaintiffs  are  the  owners  and  in  possession  of 
certain  mining  claims  on  a  certain  stream,  and  are  entitled  to  the 
natural  flow  of  the  waters  of  the  stream,  which  had  been  diverted  to 
their  injury  by  defendants,  sets  forth  a  sufficient  cause  of  action.    Leigh 
&  Co.  v.  Independent  Ditch  Co.,  8  Cal.  323. 

52.  Quantity  of  Water. — An  averment  as  to  the  precise  quantity 
of  water  required  for  the  use  of  the  mill,  and  to  which  plaintiff  claimed 
to  be  entitled,  is  an  immaterial  averment;  and  a  recovery  of  damages 
would   not  establish  plaintiff's  right   to  the  exact  quantity  of  water 
claimed,  so  as  to  be  resjudicata  in  a  subsequent  suit.     (McDonald  v. 
Bear  River  and  Auburn  Water  and  Mining  Co.,  15  Cal.  145.)     Where 
the  right  rests  in  contract,  the  amount  of  water  to  which  the  plaintiff 
was  entitled  should  be  alleged  according  to  the  fact.     (Wilbur  v.  Brown, 
3  Den.  356.)     As  to  the  sufficiency  of  this  averment,  see  Twiss  v.  Bald- 
win, 9  Conn.  291;  Williams  v.  Moreland,  2  Barnw.  &  C.  910;  Sheers 
v.  Wood,  7  Moore,  345. 

53.  Rights  of  First  Appropriates — The  rights  of  the  first 
appropriator  of  water  are  equally  protected  from  damage  by  subsequent 
appropriators  above  him,  as  well  as  below  him.     (Hill  v.  King,  8  Cal. 
336;  Phoenix  Wat.  Co.  v.  Fletcher,  23  Cal.  481.)    The  question  to  be 
determined  in  controversies  between  prior  and  subsequent  locators  is: 


308  FORMS   OF    COMPLAINTS. 

Has  the  use  and  enjoyment  of  the  water  for  the  purposes  for  which  the 
first  appropriator  claims  it,  been  impaired  by  the  acts  of  the  subsequent 
claimant?  (Hill  v.  Smith,  27  Cal.  476.)  One  who  appropriates  water 
in  a  stream  for  mining  purposes,  must  so  use  it  as  not  to  injure  or 
destroy  orchards  or  gardens  bordering  on  the  stream,  and  located  prior 
to  the  appropriation.  Wixon  v.  B.  R.  and  Aub.  Wat.  and  Min.  Co., 
24  Cal.  367. 

54.  Riparian  Rights. — The  right  to  water  must  be  treated,  in  this 
State  (California),  as  a  right  running  with  the  land.     (Hill  v.  Newman, 
5  Cal.  445.)     And  he  to  whom  it  first  comes  has  a  right  to  its  reasonable 
use,  as  for  watering  cattle  and  for  domestic  purposes;  but  he  has  no 
right  to  build  a  dam  across  it  and  spread  out  the  water  so  that  it  is  lost 
by  absorption,  and  thereby  injure  another  riparian  proprietor  below. 
(Ferrea  v.  Knipe,  28  Cal.  340.)    Possession  of  public  lands  gives  a 
right  to  the  use  of  water  for  natural  wants,  but  not  generally  to  divert 
it.     American  Co.  v.  Bradford,  27  Cal.  360.. 

55.  Running  Water. — So  long  as  the  water  of  a  stream  contin- 
ues to  flow  in  its  natural  course,  it  cannot  be  made  the  subject  of  pri- 
vate ownership.     (Kidd  v.  Laird,  15  Cal.  161.)    And  when  the  water  of 
a  stream  leaves  the  possession  of  a  party,  all  his  right  to  any  interest  in 
it  is  gone.     Eddy  v.  Simpsom,  3  Cal.  249. 

56.  Sufficient   Allegations. — The  gravamen  of  the  action  for 
wrongful  diversion  of  water  is  not  important  enough  to  require  several 
counts.     (Gale  v.  Tuolumne  Wat.  Co.,  14  Cal.  25.)    A  general  allega- 
tion in  the  complaint  that  plaintiff  was  entitled  to  all  the  water  flowing 
into  the  cafion  at  the  head  of  their  ditch,  entitles  them  to  prove  a  diver- 
sion of  the  water  from  the  smaller  branch  of  the  canon  supplying 
water  to  that  point.     Priest  v.  Union  Canal  Co.,  6  Cal.  170. 

57.  Surplus  Water. — If  the  plaintiff  was  only  entitled  to  surplus 
water,  his  complaint  must  allege  that  surplus  water  existed  or  would 
have  existed   but  for   the   defendant's    acts.     Wilbur    v.   Brown.    3 
Den.  356. 

58.  Title. — Title  to  the  water  need  not  be  alleged,  as  possession 
is  sufficient  title.     Rich  v.  Penfield,  i  Wend.  380. 

59.  Water  ditch. — Where  the  plaintiffs  have  a  right  of  way  for 
their  ditch  upon  the  surface,  and  the  defendants  have  also  a  right  to  mine 


FOR    NUISANCES.  309 

in  the  bowels  of  the  earth  beneath,  which  rights  are  not  necessarily 
incompatible,  the  maxim,  qui  prior  est  tempore,  potior  estjure,  is  not  of 
controlling  weight,  but  it  falls  under  the  maxim,  sic  utere  tuo  ut  alienum 
non  Icedas.  (Clark  v.  Willett,  35  Cal.  534.)  The  question  of  negli- 
gence in  the  management  of  a  water  ditch,  and  the  degree  of  it,  must 
necessarily  depend  in  a  great  measure  upon  the  surrounding  facts,  such 
as  the  existence  and  exposure  of  property  below  the  dam,  and  the  like; 
for  what,  under  one  state  of  facts,  would  be  prudence,  might,  under  a 
different  condition  of  things,  be  gross  or  even  criminal  negligence. 
(Wolf  v.  St.  Louis  Independent  Water  Co.,  10  Cal.  541.)  How  far  in 
cases  where  negligence  is  charged  against  the  defendants,  a  court  of 
equity  will  interfere  by  injunction,  is  not  decided.  Clark  v.  Willett, 
35  Cal.  534. 


No.  465. 

Diverting  Water  from  Flouring  Mill. 
k      [TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is,  and  at  the  time  hereafter  mentioned 
was  possessed  of  a  flouring  mill,  situated  on  a  certain 

creek  known  as  the ,  in  the  Town  of , 

County  of ,  in  this  State. 

II.  That  the  water  of  the  said  creek  was  accustomed 
to  flow  into  the  said  mill. 

III.  That  on  the  ....  day  of ,  18.  .,  the 

defendant  diverted  the  water  of  the  said  creek  away 
from  said  mill,  so  that  less  water  ran  into  it  than  before. 

IV.  That  by  reason  thereof,  the  plaintiff  has  been 

unable  to  grind  more  than barrels  of  flour  per 

day,  whereas,  before  the  said  diversion  of  water,  he  was 

able  to  grind barrels  per  day,  to  his  damage 

in dollars. 

[Demand  of  Judgment^ 


3IO  FORMS   OF    COMPLAINTS. 

60.  Form. — See  Sands  v.  Trefuses,  Cro.  Car.   575;   Anon.,  Id, 
500;  see,  also,  Haight  v.  Price,  21  N.Y.  245. 

61.  Mills. — The  grant  of  a  mill  carries  with  it  raceways  and  con- 
duits supplying  the  mill  with  water,  and  water  rights  essential  to  the 
enjoyment  of  the  mill.     (2  W.  Saund.  400;  4  Kent's  Com.  467;  Hinch- 
cliffe  v.  Earl  of  Kinnoul;    5  Sing.  N.C.  i;  6  Scott  650;   Ewart  v. 
Cochrane;  4  May.   117;  Hall  v.  Lund,   i  ff.&C.  676;  Whitney  v. 
Olney,  3  Mass.  280;  United  States  v.  Appleton,  i  Sumn.  492;  Leonard 
v.  White,  7  Mass.   5;  Johnson  v.  Jordan,   2  Met.   234;   Carbrey  v. 
Willis,  7  Allen,  369;  Oakley  v.  Stanley,  5    Wend.  523;  LeRoy  v.  Platt, 
4  Paige,  77;  Farran  v.  Stackpole,  6  Greenlf.  154;  New  Ipswich  Fact. 
v.  Bachelder,    3   N.H.    190;    Pickering   v.  Stapler,   5    S.&jR.    107; 
Elliott  v.  Sallee,  14  Ohio,  10;  Warren  v.  Blake,  54  Me.  276;    Washburn 
on  Easements,  42,  43.)     So,  a  reservation  of  a  mill  from  a  grant  would 
reserve  easements  essential  to  it  in  the  land  granted.     Pettee  v.  Hawes, 
13  Pick.  323. 


No.  466. 

i.    The  Same — Diverting   Water  from  Saw  Mill. 
[TITLE.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiff,  before  and  at  the  time  of  the 
committing  of   the  grievance  hereinafter  stated,    was 

possessed  of  a  certain  water  mill,  called  the 

Saw  Mill,  with  the  ajjpurtenances,  situated  on 

Creek   [or River,  or   Brook],   at 

,  in  the  County  of 

II.  That  the  said  plaintiff  had  a  right  to  use  and 
employ  all  the  water  of  said  [creek,  ornv&,  or  brook], 
running  in  its  natural  channel  to  said  mill,  without  its 
being  unreasonably  retarded,  or  in  any  way  obstructed 
and  diverted  therefrom. 

III.  That  the  said  defendant  did,  on  the  ....  day  of 


*  FOR    NUISANCES.  311 

,  1 8 .  . ,  dig  up  and  remove  the  bank  of  said 

stream,  and  did  divert  a  great  part  of  the  water  thereof, 
so  naturally  running  in  said  stream,  from  the  bed  of 
said  [creek],  and  from  the  said  mill  of  the  said  plaintiff, 
and  hath  from  thence  hitherto,  and  up  to  the  commence- 
ment of  this  suit,  kept  up  and  continued  the  diversion  of 
said  water  from  the  bed  of  said  creek,  and  from  the  said 
mill  of  this  plaintiff. 

IV.     That  the  said  mill,  before  said  diversion  of  the 

water  of  said  creek,  was  able  and  used  to  saw 

thousand  feet  of  lumber  in  every  twenty- four  hours; 
but  by  reason  of  said  diversion  of  the  water  of  said 
stream,  now,  and  during  the  time  aforesaid,  the  said  mill 

is  and  was  able  to  saw  only thousand  feet  of 

lumber  in  every  twenty-four  hours.  By  means  whereof 
the  said  plaintiff  has  been  deprived  during  all  that  time 
or  the  usual  profits  of  his  said  mill,  and  still  continues 
deprived  thereof,  to  the  damage  of  the  said  plaintiff  in 
the  sum  of dollars. 

[Demand  of  Judgment.] 


NOTE. — The  above  form  is,  in  substance,  from  Nash's  (Ohio)  PL  & 
Pr.  208. 


No.  467. 

For  Erecting  a  Dam  above  Plaintiff's  Dam. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.    That  on  the     .  .  .  day  of ,    1 8 .  . ,  and 

ever  since  that  day,  the  plaintiff  has  been  in  the  actual 
possession  of  an  ancient  grist-mill,  situated  on  [state 


312  FORMS    OF     COMPLAINTS.  » 

what  stream~\  in  \etc.~\,  called  \_etc. ~\,  together  with  an 
ancient  dam,  to  raise  a  head  of  water  as  high  as  should 
be  necessary  for  said  mill,  and  of  the  right  to  have  the 
whole  water  of  said  stream,  without  obstruction  or  im- 
pediment, flow  into  and  upon  the  pond  for  the  benefit 
of  said  mill,  as  ancient  rights  and  privileges,  appurtenant 
to  said  mill. 

II.    That   the   defendant   did,  on  the    ....    day  of 

,  1 8 .  . ,  erect  a  new  dam  across  the  said  stream, 

above  the  plaintiff's  dam  aforesaid,  within  the  limits  of 
the  plaintiff's  pond  and  ground,  and  thereby  cut  off  part  of 
his  said  pond,  backed  the  water  above,  and  stopped  its 
natural  course  as  it  anciently  used  to  run;  and  that  he 
still  continues  his  new  dam  and  obstruction,  thereby  fre- 
quently stopping  the  water  from  reaching  the  plaintiff's 
mill,  and  obliging  the  same  to  stand  idle  for  want  of 
water;  and  at  other  times  letting  out  the  water  through 
said  new  dam  so  suddenly,  and  in  such  large  quantities, 
as  to  tear  away  part  of  the  plaintiff's  said  dam;  whereby 
the  plaintiff's  mill  aforesaid  has  become  useless  and  of 
no  value,  to  his  damage  in dollars. 

[Demand  of  Judgment. \ 


62.  Action,  when  it  Lies. — To  authorize  the  abatement  of  a 
dam  on  the  ground  of  its  being  a  nuisance,  it  must  at  the  time  it  is 
abated  be  considered  as  a  nuisance.     The  fears  of  persons,  however 
reasonable,  that  a  thing  will  become  a  nuisance,  public  or  private,  do 
not  constitute  an  actionable  nuisance,  or  one  which  may  be  abated. 
(Gates  v.  Blincoe,  2  Dana  (Ky.)  158.)      The  thing  complained  of  can- 
not be  abated  until  it  actually  becomes  a  nuisance.     Yet  an  erection 
may  be  a  nuisance  at  a  time  when  it  is  causing  no  actual  damage. 
Amoskeag  Manuf.  Co.  v.  Goodale,  46  N.H.  56;    see  Ang.  on  Water- 
courses, 580. 

63.  Allegations. — The  union,  in  one  count  of  a  complaint,  of  an 


JFOR    NUISANCES.  313 

allegation  that  defendants  "have  wrongfully  built  dams  and  flumes 
across  said  Mormon  Creek,  *  *  *  so  as  to  turn  the  water  of  said 
creek  out  of  its  natural  channel,"  etc.,  and  thus  divert  it  from  plaintiff, 
with  an  allegation  that  defendants  "  have  constructed  gates,  etc.,  in  their 
said  dams  and  flumes,  which  they  *  *  *  hoist  for  the  purpose  of 
clearing  out  said  dams  and  flumes  of  slum,  stone  and  gravel,"  the  accu- 
mulation of  which  renders  the  water  useless  to  plaintiff,  does  not  make 
the  complaint  demurrable  on  the  ground  that  it  unites  several  distinct 
causes  of  action  in  one  count.  (Gale  v.  Tuolumne  Water  Co.,  1 4  Cal. 
25.)  The  gravamen  of  the  action  is  the  diverson  of  the  water,  and  the 
fact  that  the  diversion  is  accomplished  by  different  means  is  not  im- 
portant enough  to  require  several  counts.  Id. 

64.  Right  to  Build. — The  common  law  allows  the  owner  of  the 
soil  over  which  a  floatable  but  unnavigable  stream  flows,  to  build  a  dam 
across  it,  and  erect  a  mill  thereon,  provided  he  makes  a  convenient  and 
suitable  passage-way  for  the  public,  by  or  through  the  dam.  Lancey  v. 
Clifford,  54  Me.  487. 

No.  468. 

For  Sacking  up   Water  on  Plaintiff's  Quartz  Mill. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  before  and  at  the  time  of  the  committing  the 
injuries  hereafter  mentioned,  he  was  possessed  of  a  cer- 
tain  quartz   mill,   situated   on    Butte    Creek,   in    Butte 
County,  in  this  State,  and  above  the  premises  of  the 
defendant  hereafter   mentioned,  and   had   the  right  to 
have  the  water  flow  from  his  said  mill,  and  in  the  natural 
channel  of  said  creek,  without  any  obstruction  whatever. 

II.  That  on  the  ....  day  of ,    1 8 .  . ,  the 

defendant  erected  a  dam  to  a  great  height  across  the  bed 
of  said  creek,  and  below  the  plaintiff's  said  mill,  and 
ever  since  has  kept  the  same  up,  and  has  thereby  ob- 
structed and  stopped,  during  all  that  time,  the  natural 


314  FORMS   OF    COMPLAINTS. 

flow  of  the  water  of  said  creek,  and  raised  it  in  the  bed 
of  said  creek,  and  backed  it  up  upon  the  said  mill  and 
premises  of  the  plaintiff,  and  upon  the  wheels  and  works 

of  said  mill,  to  wit,  to  the   height  of feet, 

thereby  impeding  and  checking  the  natural  flow  of  the 
water  therefrom,  and  preventing  the  said  water  from 
carrying  off  the  tailings  from  said  mill,  and  otherwise 
impeding  and  preventing  the  operation  of  said  mill,  and 
diminishing  the  value  thereof. 

[Demand  of  Judgment.] 


65.  Action,  when  it  Lies. — An  action  to  abate  a  nuisance  in 
a  highway,  by  water  obstructing  the  free  use  of  plaintiff's  property,  will 
lie  the  same  as  to  abate  a  nuisance  in  a  highway  by  land.     (Blanc  v. 
Klumpke,  29  Cal.   156.)     If  a  nuisance  in  a  highway  only  affect  the 
plaintiff  in  common  with  the  public  at  large,  in  the  use  of  the  highway, 
he  cannot  have  his  private  action;  but  if  the  free  use  of  his  private 
property  is  interfered  with  by  such  nuisance,  he  may  have  his  private 
action  to  abate  the  same.     (Id.}     Injury  to  the  naked  right  to  have  the 
water  flow  as  it  would  naturally  do,  is  sufficient  to  maintain  the  action. 

16  Pick.  241;  12  Me.  407;  2  Story  R.  661;  9  N.H.  88;  17  Pick.  23; 

17  Conn.  288;  4  Barr.  (Pa.  R.}  486;  25  Me.  209;  3  Greenl.  R.   116; 
i  Rawle,  21 ;  see  Ang.  on  Watercourses,  142;  8  Ohio,  548. 

66.  Backing1  up  Water. — Plaintiffs  owned  certain  mining  claims 
and  quartz  lodes,  on  the  banks  of  a  stream,  above  the  mill  and  dam  of 
defendant.     Defendant  commenced  raising  his  dam  two  feet  higher. 
Plaintiffs  brought  suit  against  defendant,  alleging  that  the  addition  of 
two  feet  to  defendant's  dam  was  a  nuisance,  and  would  back  the  water 
upon  plaintiffs'  claims,  and  thus  prevent  them  from  working  them,  and 
would  also  destroy  their  water  privilege  for  a  quartz  mill  which  they 
intended  to  construct.     Held,  that  the  action  was  premature,  and  that  the 
demurrer  to  the  complaint,  on  the  ground  that  the  complaint  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action,  was  properly  sus- 
tained.    Harvey  v.  Chilton,  n  Cal.  120. 

67.  Covenant  in  Deed.     If  the  purchaser  of  a  mill  seat  and 
water  power  accepts  from  the  vendor  a  deed,  without  any  covenant  for 


FOR    NUISANCES.  315 

his  protection  as  to  the  height  of  the  dam  or  the  extent  of  flow  to  which 
he  is  entitled,  and  the  purchaser  is  subject  to  an  action  of  damage  by 
reason  of  the  improper  height  of  the  dam,  he  is  without  remedy  either 
at  law  or  in  equity.  Angel  on  Watercourses,  557;  Hopper  v.  Lutkins, 
3  Green  (  N.f.)  Ch.  149. 

68.  Duty  of  Owner. — The  owner  of  the  dam  is  bound  to  so 
govern   and   control   it  that   injury  may  not  result  to  his  neighbors. 
Fralor  v.  Sears  Union  Water  Co.,  12  Cal.  555;  see  Nevada  Wat.  Co. 
v.  Powell,  34  Cal.  109. 

69.  Injunction. — A  perpetual  injunction  to  restrain  the  defend- 
ants from  raising  their  dam   higher  than  the   point  designated  was 
allowed.     (Ramsey  v.  Chandler,  3   Cal.    90.)     So,  an  injunction  will 
be  granted    for   the  diversion  of  water  from  a   stream    (Tuolumne 
Water  Co.  v.  Chapman,  8  Cal.  392),  where  the  injury  is  continuing. 
Coker  v.  Simpson,  7  Cal.  340;  see  Rupley  v.  Welsh,  23  Cal.  452. 

70.  Injury  to  Garden. — In  an  action  for  injuries  to  a  garden 
occasioned  by  the  breaking  of  a.  reservoir,  the  Court  instructed  the  jury 
that,  to  entitle  plaintiff  to  recover,  it  must  appear  that  the  breaking  of  the 
reservoir  resulted  fiom  the  gross  negligence  of  defendants;  and  then  pro- 
ceeded to  explain  that  defendants  must  have  taken  the  same  care  of  their 
reservoir  and  of  the  water  in  it,  as  they  would  have  done,  being  prudent 
men,  had  the  garden  of  plaintiff  been  their  own  property;  and  that  other- 
wise they  had  been  guilty  of  gross  negligence,  and  were  liable  in  dam- 
ages.    Held,  that  although  the  instruction  without  the  explanation  was 
wrong,  still  with  the  explanation  it  was  right,  and  could  not  have  misled 
the  jury.     Todd  v.  Cochell,  17  Cal.  97. 

71.  Injury  to  Land,  and  Crops. — Where  defendants  erected  a 
dam,  whereby  the  waters  which  during  freshets  found  their  way  into  the 
bay,  across  the  land  of  the  defendants,  were  diverted  from  their  natural 
course,  and  made  to  flow  upon  the  plaintiff's  land,  injuring  the  crops 
and  rendering  it  unfit  for  cultivation,  the  dam  is  clearly  a  nuisance. 
Castro  v.  Baily,  Cal.  Sup.  Ct.,  Oct.  T.,  1869;  citing  Ashley  ».  Wolcutt, 
ii  Cush.  192;  Luther  v.  Winnisimmet  Co.,  9  Id.  171. 

72.  Ohio. — In  Ohio  it  seems  to  have  been  held,  that  no  action 
would  lie  for  flowing  or  deepening  water  in  the  channel  of  the  stream 
on  one's  own  premises.     (Cooper  v.   Hall,  5  Ohio,   311.)     But  this 
appears  to  be  against  all  authorities,  and  is  wrong  in  principle.      See 
Angel  on  Watercourses,  142. 


316  FORMS   OF    COMPLAINTS. 

73.  Obstructing   Flow   of   Tailings. — The   plaintiffs  allege 
that  they  are  the  owners  of  a  certain  mining  claim,  which  claim  cannot 
be  worked  without  the  use  of  the  canon  as  an  outlet  for  water  and 
tailings;  that  the  grade  of  the  canon  is  light,  and  that  the  defendants 
have  erected  and  are  maintaining  a  dam  across  the  cafion  at  a  point 
below  their  claim,  which  obstructs  the  flow  of  water  and  tailings  to  such  an 
extent  as  to  render  the  working  of  their  claim  impracticable.     Upon 
an  issue  of  title  to  the  ground  to  entitle  the  plaintiffs  to  recover,  it 
should  have  appeared:    First,  That  the  plaintiff's  owned  the  ground; 
Second,  That  the  dam  prevented  them  from  working  it  to  advantage; 
Third,  Alternatively,  that  the  defendants  .had  no  title  to  the  bed  of  the 
canon,  or  if  they  had,  that  their  right  was  subsequently  acquired,  or  if 
prior,  that  the  dam  was  not  needed  to  enable  the  defendants  to  work  to 
advantage.     Stone  v.  Bumpus,  Cal.  Sup.  Ct.,  Apl,  T.,  1869. 

74.  Overflowing  Water  Ditch. — A  complaint  which  alleges 
that  the  plaintiffs  were  on  a  certain  day  the  owners  and  proprietors  of 
a  certain  valuable  water  ditch,  for  the  purpose  of  conveying  water,  and 
at  which  time  and  place  the  defendant!!  were  also  owners  of  a  certain 
other  ditch  for  the  purpose  aforesaid,  and  that  afterwards,  on  the  same 
day  and  year,  at,  etc.,  aforesaid,  the  said  defendants'  ditch  was  so  badly 
and  negligently  constructed  and  managed,  and*  the  water  therein  so 
carelessly  and  negligently  attended  to,  that  said  ditch  broke  away,  and 
the  water  therein  flowed  over  and  upon  the  said  ditch  of  plaintiffs, 
greatly  damaging  and  injuring  the  same,  and  carrying  down  therein  and 
thereon  great  quantities  of  rock,  stone,  earth  and  rubbish,  and  break- 
ing said  plaintiffs'  ditch,  and  depriving  them  of  the  use  and  profit  of 
the   water  flowing   therein,  to   said   plaintiffs'    damage   $3,000,  and 
thereof  they  bring  suit,  is  sufficient.     Tuolumne  County  Water  Co. 
v.  Columbia  and  Stanisluas  Water. Co.,  10  Cal.  195. 

75.  Overflowing  of  Dam  and  Ditch. — The  overflowing  of 
a  dam  is  a  nuisance.     (Ramsay  v.  Chandler,  3  Cal.  90.)    A  ditch  to 
carry  off  water  rightfully  flowing  to  a  mining  claim,   is  as  much  a 
nuisance  as  a  dam  to  flood  it.     (Parke  v.  Kilham,  8  Cal.  77.)     While 
a  ditch  by  which  the  waters  of  a  stream  have  been  appropriated  is  out 
of  repair,  and  not  in  a  condition  to  cany  any  water,  an  action  will  not 
lie  to  abate  as  a  nuisance  a  reservoir,  constructed  across  the  bed  of  the 
stream,  above  the  head  of  the  ditch,  by  which  the  water  of  the  stream 
is  collected  and  detained,  and  caused  to  flow  unequally.     Bear  River 
and  A.  W.  and  M.  Co.  v.  Boles,  No.  2,  24  Cal.  359. 


FOR  NUISANCES.  317 

76.  Priority  of  Right  to  Water. — A  person   may  construct 
or  continue  what  would  otherwise  be  an  actionable  nuisance,  provided 
that  at  the  commencement  of  it  no  person  was  in  a  condition  to  be 
injured  by  it;  or  in  other  words,  mere  priority,  as  between  owners  of  the 
soil,  gave  a  superior  right.     Tenney  v .  Miners'  Ditch  Co.,  7  Cal.  339. 

77.  Raising  Dam. — Because  an  appropriator  diverted  the  water  of 
a  stream  by  means  of  a  dam  and  ditch,  it  does  not  necessarily  follow 
that  he  had  a  right  to  raise  his  dam  higher  and  higher,  as  occasion 
might  require,  to  obviate  obtruction  in  the  use  of  the  water  in  the  man- 
ner of  its  said  original  appropriation.     (Nevada  Water  Co.  v .  Powell, 
34  Cal.  log.)     In  such  cases,  the  question  of  his  right  must  be  subor- 
dinate to  a  subsequent  appropriator.     Id. 

73.  Relief. — Where  plaintiff's  mining  claim  was  overflowed  by 
means  of  a  dam  erected  by  the  defendant,  the  decree  should  .have 
ordered  a  reduction  of  the  dam  so  as  to  prevent  the  overflow,  or  if 
necessary,  its  entire  abatement.  Ramsay  v.  Chandler,  3  Cal.  90 

79.  Sufficient  Averment. — In  an  action  for  damages,  and  for 
breaking  defendant's  dam,  and  flooding  plaintiff's  mining  claim,  where 
the  complaint  is  in  one  count,  and  charges  that  "defendant's  said  reser- 
voir, by  reason  of  some  defect  in  its  construction,  was  insufficient  for 
the  purpose  for  which'  it  was  constructed,  or  by  carelessness  and  mis- 
management on  the  part  of  said  defendants,  broke  away,"  etc.:  Held, 
that  the  complaint  is  sufficient.  Hoffman  v.  Tuolumne  County  Water 
Co.,  10  Cal.  416. 


CHAPTER  III. 

PARTITION. 

No.  469. 

i.    For  Partition  of  Real  Property. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  and  the  defendants  C.  B.  and  D.  B.  are 
in  possession,  as   tenants  in  common,  of  certain   real 

property  in  the  Town  of ,  in  the  County  of 

,  described  as  follows:   [describing  it.~\ 

II.  That  he  has  an  estate  of  inheritance  therein, 
consisting   of  one   undivided    [third]    part  thereof,  as 
tenant  in  common  with  the  defendants  C.  B.  and  D.  B., 
who  have  each  a  similar  estate. 

III.  That  the  defendant  J.  S.  has  a  mortgage  hereto- 
fore  executed  by  the   defendant  D.  B.   upon  his  said 

interest,  for  the  payment  of dollars,   on  the 

....  day  of ,    1 8 . . ,  with  interest  from  that 

time. 

[IV.    That  the  plaintiff  owns  no  other  land  in  this 
State  in  common  with  the  said  C.  B.  and  D.  B.] 

Wherefore  the  plaintiff  demands  judgment: 

i .     For  a  partition  of  the  said  real  property,  accord- 
ing to  the  respective  rights  of  the  parties  aforesaid;  or 


FOR     PARTITION.  319 

if  a  partition  cannot  be  had  without  material  injury  to 
those  rights,  then  for  a  sale  of  the  said  premises,  and  a 
division  of  the  proceeds  between  the  parties,  according 
to  their  rights. 

1.  Action    of  Partition. — The    proceeding  in    partition  is   a 
special  proceeding  prescribed  by  the  statute,  and  though  errors  in  the 
course  of  the  cause  cannot  be  collaterally  shown,  yet  so  far  as  the  rights 
of  infants  are  involved,  the  Court  has  no  jurisdiction  except  over  the 
matter  of  the  partition.     (Waterman  v.  Lawrence,  19  Cal.  210.)     The 
object  of  the  suit  is  to  enable  each  party  to  obtain  the  title,  and  the  use 
for  all  future  time  in  severally,  of  some  definite  portion  of  the  property 
owned  in  common.     (McGillivray  v.  Evans,  27  Cal.  92.)     And    when 
parties  go  into  partition  upon  certain  terms  and  conditions,  the   instru- 
ment of  partition  founded  on  certain  releases  is  itself  an  affirmation  of 
title  and  interest  so  as  to  estop  a  party  thereto  from  subsequently  deny- 
ing interest  and  ownership  in  the  property.     (Tewksbury  v.  Provizzo, 
12  Cal.  20.)     The  intention  of  the  action  of  partition  is  to  make   one 
judgment  in  partition  final  and  conclusive  on  all  persons   interested  in 
the  property  or  any  part  of  it.     Such  actions  partake  more  of  the  prin- 
ciples of  equity  than  of  law.     (Gates  v.  Salmon,  35  Cal.  578.)     If  be- 
tween the  parties  to  an  action  for  partition,  disputes   exist  as   to  their 
rights  or   interests  in   any  respect,  such  disputes  may  be  litigated  and 
determined.     Morehead  v.  Higuera,  32  Cal.  289. 

2.  Allegations  Essential.— Under  the  New  York  practice,  the 
complaint  must  show  that  the  plaintiff  is  in  possessionj^ctual  or  con- 
structive.    (Stryker  v.  Lynch,  11  N.Y.Leg.  Obs.  116.)     That  plaintiff 
is  possessed  of  an  undisputed  title  to  an  undivided  share  in  remainder, 
although  there  be  an  existing  admitted  life-estate  covering  the  whole 
premises,  is  a  sufficient  allegation  of  the  right  of  possession.     (Blakely  v. 
Calder,  1 3  How.  Pr.  476.)  The  allegation  that  the  parties  were  seized  in 
common  raises  the  presumption  of  possession.    (Jenkins  v.  Van  Schaack, 
3  Paige,  242;    and  see  Burhans  v.  Burhans,  2  Barb.  Ch.  398.)     And 
where  a  party  was  stated  to  be  seized  of  a  certain  portion,  it  was  con- 
strued to  mean  a  seizin  in  fee.     (Lucet  v.  Beekman,  2  Cat.  385.)  The 
complaint  must  aver  that  the  co-tenants  hold  and  are  in  possession  of 
real  property  as  joint  tenants,  or  as  tenants  in  common,  in  which  prop- 
erty one  or  more  of  them  have  an  estate  of  inheritance,  or  for  life  or 
lives,  or  for  years.     Bradley  v .  Harkness,  26  Cal.  76. 


32O  FORMS   OF    COMPLAINTS. 

3.  Allegations  Sufficient. — In  a  complaint  to  obtain  partition 
of  land,  a  general  allegation  that  "  the  premises  cannot  be  divided  by 
metes  and  bounds  without  prejudice,"  is  sufficient,  without  an  allegation 
of  the  facts  upon  which  the  plaintiff  relies  to  obtain  a  particular  mode 
of  partition.  (DeUprey  v.  DeUprey,  27  Cal.  329.)  A  complaint  in 
partition  is  good  which  is  silent  upon  the  subject  of  the  mode  of  par- 
tition. (Id.}  If  the  Court  finds  that  the  parties  hold,  and  are  in  pos- 
session of  real  property,  as  joint  tenants  or  as  tenants  in  common,  in 
which  one  or  more  of  them  have  an  estate  of  inheritance,  or  for  life,  or 
lives,  or  for  years,  the  partition  should  be  made,  although  the  findings 
may  also  show  that  the  plaintiff,  in  his  complaint,  has  incorrectly  set 
forth  the  title  or  interest  of  the  parties,  or  of  one  or  more  of  them  in 
the  land.  DeUprey  v.  DeUprey,  27  Cal.  331. 

4.  Allegation — Premises  Subject  to  Judgment  Lien. — 

That  the  defendant  [judgment-creditor]  holds  a  judgment  recovered  by 

him,  duly  given  in  the Court,  on  the  ....  day  of , 

1 8 .  .,  against [co-tenants],  for  the  sum  of dollars; 

which  judgment  was,  on  the  ....  day  of ,  1 8 . . ,  docketed  in 

said  County  of [where premises  situated],  and  remains  unpaid 

and  unsatisfied  of  record. 

5.  Community  Property. — Where  a  community  was  formed 
making  a  common  stock  of  property  and  renouncing  individual  owner- 
ship, and  became  incorporated,  the  individual  members  of  the  commu- 
nity, or  the  heirs  upon  their  death,  were  not  entitled  to  a  partition  of 
the   property.     Goesele   v.  Bunler,   14  How.   U.S.  589;    affirming   5 
McLean,  223;  and  8  West.  Law  J.  385. 

i 

6.  Deed  Obtained  by  Fraud. — The  question  whether  a  deed 

was  obtained  by  fraud  cannot  be  considered  in  proceedings  for  parti- 
tion; it  must  be  sent  to  a  court  of  law  for  trial.  (McCall  v.  Carpenter, 
1 8  How.  U.S.  297.)  Plaintiff  sues  defendants  for  partition.  The  Court 
orders  a  sale  of  the  property  and  distribution  of  the  proceeds.  After  the 
sale,  G.  files  a  petition,  stating  that  he  is  the  creditor  of  one  F.  M.  H. 
(not  plaintiff),  and  has  an  attachment  lien  on  the  interest  of  said  F.  M. 
H.,  in  the  property  sold;  that  said  property,  in  fact,  belonged  to  F.  M. 
H.,  and  that  any  conveyances  of  the  same  from  him  to  plaintiff  were 
merely  colorable,  for  the  use  and  benefit  of  F.  M.  H.,  and  made  to 
hinder,  delay,  and  defraud  his  creditors.  G.  asked  the  Court,  to  pay  him 
the  share  of  the  proceeds  of  the  partition  sale  coming  to  plaintiff;  Court 
refused.  Held,  that  there  was  no  error,  the  petition  of  G.  being  an  at- 


FOR     PARTITION.  321 

tempt  to  defeat  a  conveyance  to  plaintiff,  on  the  ground  of  fraud,  is 
insufficient  in  this,  that  there  is  no  allegation  of  the  insolvency  of  F.  M. 
H.,  and  that  the  charges  of  fraud  are  too  general,  and  do  not  state  the 
specific  facts  constituting  the  fraud.  Harris  v.  Taylor,  15  Cal.  348. 

• 

7.  Form. — The  above  form  and  the  following  are  from  the  forms 
recommended  by  the  Code  Commissioners  of  the  State  of  New  York. 

8.  Interest  of  Parties. — The  interests  of  all   persons  in  the 
property,  whether  such  persons  be  known   or  unknown,  shall   be  set 
forth  in  the  complaint  specifically  and  particularly,  as  far  as   known  to 
the  plaintiff.     (Cal.  Pr.  Act,  §  265.)     When  mining   land   is   claimed 
and  possessed  by  joint  tenants,  tenants  in  common,  or  co-partners,  or 
even  partners,  their  interests  are  in  the  nature  of  an  inheritance,  and  may 
be  partitioned  as  real  property.  (Hughes  v.  Devlin,  23  Cal.  501 .)  Where, 
in  an  action  for  partition,  all  necessary  parties   have  been  joined,  any 
error  in  stating  the  interest  and  shares  of  the  parties,  or  any  omission  to 
state  what  the  plaintiff  might  have  been  compelled  on  motion  to  insert, 
is  not  an  irregularity  which  can   affect  the   title.     Noble  v.  Cromwell, 
27  How.  Pr.  289;  affirming  S.C.,  26  Barb.  475. 

9.  Interests  Contingent. — If  one  or  more  of  the  parties,  or  the 
share  or  quantity  of  interest  of  any  of  the  parties,  be   unknown   to   the 
plaintiff,  or  be  uncertain  or  contingent,  or  the  ownership  of  the  inherit- 
ance depend  upon  an  executory  devise,  or  th»  remainder  be   a  contin- 
gent remainder,  so  that  such  parties  cannot  be  named,  that  fact  shall  be 
set   forth  in   the  complaint.     (Cal.  Pr.  Ac/,  §  265.)     The   complaint 
should  set  forth  the  nature  of  such  contingent  interest.     Van  Cortlandt 
v.  Beekman,  6  Paige,  4Q2. 

10.  Land  Formed  by   Accretion. — In   apportioning  to  pro- 
prietors their  respective  shares  of  an  alluvial  accretion,  the  whole  length 
along  the  shore  of  the  alluvian  shall  be  first  found,  and  it  shall  then  be 
divided  among  the  proprietors  of  the  upland  in  proportion  to  their 
shore  line.     Jones  v.  Johnston,  18  How.  U.S.  150. 

11.  Legacies. — Any  heir,  devisee,  or  legatee,  after  the  lapse  of 
four  months  after  issuance  of  letters  testamentary,  may  petition  the 
Court  to  have  the  legacy  or  share  of  the  estate  given  to  him  on  his  giving 
bonds  for  his  proportion  of  the  debts  of  the  estate.     (Gen.  Laws  of 
Cal.  1  5,948.)    As  to  the  proceedings  thereon,  consult  Gen.  Laws  of 
Cal.  11  5,948,  5,978. 

21 


322  FORMS   OF    COMPLAINTS. 

12.  Lien-Holders. — No  person  having  a  conveyance  of  or  claim- 
ing a  lien  on  the  property,  or  some  part  of  it,  need  be  made  a  party  to 
the  action,  unless  such  conveyance  or  lien  appear  of  record.    (Cal.  Pr. 
Act,  §  266.)  A  judgment-creditor  of  a  deceased  person  is  not  entitled  to 
be  made  a  party  to  a  partition  suit.     (Waring  v.  .Waring,  3  Abb.  Pr. 
246.)    But  the  complaint  may  state  that  one  of  the  defendants  claims  to 
a  specific  lien  on  the  premises,  and  ask  for  an  accounting.     (Bogardus 
v.  Parker,  7  How.  Pr.  305.)     Where  there  are  outstanding  liens  or  in- 
cumbrances  of  record  upon  such  real  property,  or  any  portion  thereof, 
existing  at  the  commencement  of  the  action,  the  persons  holding  such 
liens  may  be  made  parties  to  the  action.     Cal.  Pr.  Act.  §  273. 

13.  Married  Woman. — A  married  woman  whose  husband  is 
sued  in  partition,  is  a  necessary  party,  if  she  claims  a  homestead  right  to 
or  an  interest  in  the  property  in  dispute.  (DeUprey  v.  De  Uprey,  27  Cal. 
331.)     That  a  wife  should  be  co-plaintiff  with  her  husband  in  such 
actions,  (Ripple  z>.  Gilborn,  8  How.  Pr.  456;  Brownson  v.  Gifford,  Id. 
389.)     But  a  widow,  though  a  proper,  is  not  a  necessary  party.     And  a 
judgment  which  makes  not  a  sale,  but  actual  partition,  in  no  way  affects 
her  interests,  and  should  not  be  disturbed  upon  her  motion  to  set  aside 
for  irregularity.     Gordon  v.  Sterling,  13  How.  Pr.  405;  and  see  Ash  v. 
Cook,  3  Abb.  Pr.  389;  Tanner  v.  Niles,  i  Barb.  560;  compare  Ripple 
v.  Gilborn,  8  How.  Pr.  456. 

14.  Mining  Claim*— The  mere   fact  that  a  mining  claim  is 
owned  and  worked  by  several  persons  as  partners,  is  no  valid  objection 
to  a  partition  of  the  same  between  the  owners,  where  the  answer  does 
not  set  up,  and  it  is  not  shown  that  a  suit  in  equity  is  necessary  to  settle 
the  accounts  and  adjust  the  business  of  the  partnership;  and   all  the 
material  allegations  in  a  complaint  for  partition  of  real  property,  which 
are  not  denied  by  the  answer,  are  deemed  admitted  for  the  purpose  of 
the  trial.     (Hughes  v.  Devlin,  23  Cal.  501.)     Where  two  thirds  of  a 
quartz  mill  and  mine  were  owned  by  M.  and  S.,  while  the  other  third 
was  owned  by  C.  and  Y.,  and  the  profits  and  losses  of  the  entire  claim 
were  shared  in  this  proportion,  M.  and  S.  conveyed  by  deed  their  in- 
terest to  R.,  who  entered  into  and  remained  in  possession  of  the  same, 
a  small  portion  only  of  the  purchase  money  being  paid  down  by  R.    A 
suit  was  instituted  against  M.,  S.,  C.  and  Y.  for  a  debt  due  by  the  com- 
pany, and  judgment  was  passed  against  them,  and  all  their  right,  title, 
and  interest  were  sold  to  H.,  who  in  due  course  received  a  sheriffs 
deed,  under  and  by  virtue  of  which  he  thereafter  claimed  to  own  all 


FOR    PARTITION.  323 

said  ptoperty.  In  an  action  by  R.  against  H.  to  quiet  title,  it  was  held 
that  R.  acquired  under  said  deed  from  M.  and  S.  the  title  to  the  two- 
thirds  undivided  interest,  and  H.  acquired  by  said  sheriff's  deed  only 
the  one  third  undivided  interest  of  C.  and  Y.  Ross  v.  Heintzen,  36 
Cal.  313. 

15.  Mortgage. — It  is  not  sufficient  to  aver  merely  that  the  defend- 
ant claims  an  interest  adverse  to  the  plaintiff,  but  the  nature  of  the 
claim  should  be  set  out.     (Stryker  v.  Lynch,  n  N.Y.  Leg.  Obs.  116.) 
The  plaintiff  cannot  foreclose  a  mortgage  which  he  holds  on  defend- 
ant's interest  in  the  property,  and  cut  off  defendant's  equity  of  redemp- 
tion by  an  absolute  sale,  as  in  partition.     Bradley  v.  Harkness,   26 
Cal.  76. 

16.  Notice — Lis  Pendens. — Immediately  after  filing  the  com- 
plaint, the  plaintiff  shall  file  with  the  Recorder  of  the  county  or  of  the 
several  counties  in  which  the  property  is  situated,  either  a  copy  of  such 
complaint  or  a  notice  of  the  pendency  of  the  action.     From  the  time 
of   the  filing,  it  shall  be  deemed  notice   to  all  persons.     (Cal.  Pr. 
Act,  §  267.)    The  notice  shall  contain  the  names  of  the  parties  so  far 
as  known,  the  object  of  the  action,  and  a  description  of  the  property. 
Cal  Pr.  Act,  §  267. 

17.  Parol  Partition. — In  general,  a  valid  partition  of  lands  cannot 
be  made  by  parol,  such  case  being  within  the  Statute  of  Frauds.     But  a 
parol  partition  may  be  made  of  lands  held  under  a  trust  arising  by  im- 
plication of  law.     (Dow  v.  Jewell,  1 8  N.H.  340.)     And   a  parol   par- 
tition, valid  as  between  the  parties,  may  be  ratified  by  others  interested 
in  the  land.     (lu.)     Family  arrangements  are  to  be  regarded  with  favor, 
and  a  parol  partition  among  heirs,  if  fairly  made,  is  binding  even  upon 
femmes  covert,  if  they  are  parties  to  it,  and  assent  to   the  arrangement; 

but  only  when  it  has  been  agreed  to  by  all  the  joint  owners,  and  when 
it  has  been  executed.  McConnell  v.  Carey,  48  Penn.  345. 

18.  Parol  Partition,  how  Made. — A  parol  partition  of  land 
may  be  made  by  co-owners  under  the  Mexican  law,  as  well  as  by  ten- 
nants   in  common   under  the  common   law.     (Long  v.    Dollarhide, 
24  Cal.  222.)     In  order  to  uphold   a  parol   partition  under   both  the 
Spanish  and  common  law,  it  must  satisfactorily  appear  that  there   was 
not  only  an.  agreement  to  make  the  partition,  but  that  the   same  was 
fully  executed  and  followed  up  by  a   several   possession,  by  either  the 
parties  themselves  or  their  grantees     (Id.)    An  agreement  to  establish 


324  FORMS    OF    COMPLAINTS. 

a  partition  line  between  the  occupants  of  adjoining  tracts  of  land  is  of 
no  validity.  In  order  to  render  such  agreement  for  a  partition  line 
effectual,  each  party  must  have  the  title  to  and  right  to  dispose  of  the 
tract  claimed  by  him;  or,  in  other  words,  they  must  be  co-terminous 
proprietors.  (Carpentier  v.  Thirston,  24  Cal.  280.)  A  parol  partition 
of  land  owned  by  tenants  in  common  could  be  made  in  California 
before  the  adoption  of  the  common  law;  but  the  agreement  for  such 
partition  should  be  satisfactorily  proved,  and  each  tenant  in  common 
should  have  assigned  to  him  and  enter  upon  and  possess  a  specific  part 
of  the  land  in  severally.  Elias  v.  Verdugo,  27  Cal.  420. 

19.  Partial  Partition. — When  in  the  opinion  of  the  Court,  a  com- 
plete partition  would  be  impracticable  or  inconvenient,  a  partial  partition 
may  be  made.     (See  Cal.  Pr.  Act,  §  272.)     Where  commissioners  in 
the  partition  and  allotment  failed  to  divide  and  allot  some  marsh  land, 
a  part  of  the  tract,  and  where  no  proof  was  offered  that  this  land  was 
of  any  value,  or  that  the  division  made  was  affected  in  any  manner  by 
the  failure  to  divide  it,  or  that  the  allotments  made  would  in  any  degree 
have  been  affected  by  the  allotment  of  this,  or  that  any  injury  resulted 
to  any  one  interested   in  consequence  of  this  omission,  and   where 
important  rights  have  vested  under  the  partition,  this  court  would  not 
be  warranted  in  holding  the  action  of  the  commissioners  void  because 
of  their  failure  to  divide   and  allot  the  marsh  land.     Tewksbury  v. 
Provizzo,  12  Cal.  20. 

20.  Parties. — When  several  co-tenants  hold  and  are -in  possession 
of  real  property,  as  parceners,  joint  tenants,  or  tenants  in  common,  in 
which  one  or  more  of  them  have  an  estate  of  inheritance,  or  for  life  or 
lives,  or  for  years,  an  action  may  be  brought  by  one  or  more  of  such 
persons  for  a  partition  thereof.     (Cal.  Pr.  Act,  §  264.)     A  tenant  in 
common  of  part  of  a  tract  of  land  is  a  proper  party  in  a  suit  for  the  parti- 
tion of  the  whole.     (Gates  v.  Salmon,  28  Cal.  320;  Button  v.  Warschauer, 
21  Cal.  609;  Hathaway  v.  De  Sota,  Id.  191.)    The  real  parties  in  interest 
should  be  joined  in  partition,  and  the  holder  of  a  special  tract,  as  well 
as  the  co-tenants  of  his  grantor,  should  be  made  parties  to  the  action. 
(Gates  v.  Salmon,  35  Cal.  576.)     Neither  the  administrator  nor  the 
creditors  of  an  intestate  are  necessary  or  proper  parties  to  a  bill  for  par- 
tition between  the  heirs  of  the  estate  of  the  intestate,  even  if  his  per- 
sonal  property  is   insufficient  to   pay  his  debts.     (Speer  v.  Speer,   i 
McCarter  (N,J.}  240.)     The  proper  construction  of  §  4  of  the  Cal. 
Pr.  Act,  taken  in  connection  with  §§  268,  278,  and  293,  requires  that 


FOR    PARTITION.  325 

the  holder  of  a  special  tract,  as  well  as  the  co-tenants  of  his  grantor, 
should  be  made  a  party  to  such  action.  (Gates  v.  Salmon,  35  Cat.  576; 
cited  as  authority  in  Sutler  v.  San  Francisco,  36  Cal.  112.)  The  severa 
parties  to  an  action  of  partition,  so  far  as  its  ultimate  purpose  is  con- 
cerned, to  wit:  a  partition — are  all  actors  or  plaintiffs,  each  against 
each  and  all  others,  and  it  is  in  this  respect  a  matter  of  no  consequence 
whether  they  appear  uponjthe  face  of  the  record  in  the  technical  atti- 
tude of  plaintiffs  or  defendants.  Morenhout  v.  Higuera,  32  Cal.  295. 

21.  Partition    by    Attorney. — A    power  of    attorney   which 
authorizes  the  attorney  to  sell  the  lands  of  the  constituent,  and  to  do 
whatever  is  necessary  to  carry  the  power   into  execution,   does  not 
authorize  the  attorney  to  make  partition  of  lands  in  which  the  constit- 
uent has  an  interest  as  a  tenant  in  common.     (Borel  v.  Rollins,  30 
Cal.  408.)     But  an  attorney  in  fact,  whose  power  does  not  authorize 
him  to  make  partition  of  the  lands  of  his  principal,  may  afterwards  give 
effect  and   confirmation   by  the  execution  of  deeds  of  conveyance. 
Id. 

22.  Partition  by  Deed. — Where  a  deed  of  partition  is  invalid 
as  a  conveyance,  by  reason  of  its  non-execution  by  some  of  those  who 
are  parties  to  it,  it  may  become  effectual  by  the  parties  taking  and  hold- 
ing in  severally  in  pursuance  of  its  terms,  and  dealing  with  their  respect- 
ive parties  as  if  owned  in  severally;  but  such  acts  of  ratification  do  not 
operate  to  make  the  deed  a  valid  conveyance,  but  only  by  way  of  estop- 
pel or  as  a  determination  of  boundaries,  and  only  upon  the  interests  of 
those  performing  them.     A  party  who  signed  the  deed  is  not  estopped 
from  insisting  upon  its  invalidity  by  reason  of  any  acts  of  ratification, 
either  of  the  others  who  did  execute  or  of  those  who  failed  to  execute. 
(Tewkesbury  v.  O'Connell,  21  Cal.  60.)     A  contract  between  A.  and  E., 
tenants  in  common,  by  which  it  is  agreed  that  B.'s  interest  in  the  land 
shall  be  a  certain  amount  in  excess  of  what  he  otherwise  owned,  and 
that  B.  shall  extinguish  all  claim  of  title  in  the  land  set  up  by  C.,  by 
procuring  C.'s  deed,  and  that  after  certain  other  events  transpire  a  divi- 
sion of  the  land  shall  take  place  between  the  contracting  parties,  and 
deeds  be  exchanged,  is  not  fulfilled  by  B.  having  procured  C.'s  deed 
before  the  contract  was  made,  nor  by  procuring  C.'s  deed  to  himself, 
unless  he  then  conveys  it  to  A.;  (Porter  v.  Atherton,  32  Cal.  416;) 
even  though  C.  had  no  valid  title  to  the  land.     (/</.)     A  conveyance  by 
one  tenant  in  common,  or  any  number  less  than  the  whole,  of  a  spe- 
cific portion  of  the  common  lands,  is  not  void,  but  cannot  be  made  to 


326  FORMS    OF    COMPLAINTS. 

the  prejudice  of  the  tenants  not  uniting  in  the  conveyance.     Gates  v. 
Salmon,  35  Cal.  576. 

23.  Partition  not  Presumed. — A  partition  by  judicial  decree 
among  tenants  in  common,  will  not  be  presumed  to  have  been  made 
from  lapse  of  time,  occupancy  in  severally,  and  the  destruction  of  the 
records  of  a  court  which  had  jurisdiction  to  make  such  partition,  against 
a  tenant  who  married  while  under  age,  and  whose  coverture  continued 
until   shortly   before  suit   brought.     Weatherhead  v.  Baskerville,   1 1 
Hmv.  U.S.  330. 

24.  Partition  -without  Action. — Where  a  deed  of  partition, 
executed  by  a  number  of  tenants  in  common,  by  the  terms  of  which 
each  party  conveyed  and  released  his  undivided  interest  in  the  whole 
in  consideration  of  the  conveyance  to  him  of  the  undivided  interests  of 
others  to  specified  portions,  if  the  deed  was  not  executed  by  all,  the 
deed  was  void  as  to  those  who  did  not  sign.     (Tewksbury  v.  O'Connell, 
2 1  Cal.  60. )     But  it  may  become  effectual  by  the  parties  taking  and 
holding  in  severalty  under  its  terms.     Id. 

25.  Referee. — The   Court  may  appoint  a  referee  to  ascertain 
whether  liens  or  incumbrances  have  been  paid,  or  what  amount  remains 
due  thereon,  or  whether  the  amounts  due  have  been  secured,  and  the 
nature  and  extent  of  the  security.     (Cal.  Pr.  Act,  §  273.)     And  notice 
of  such  hearing  before  the  referee  shall  be  served  upon  such  lien- 
holders.     (Cal.   Pr.  Act,  §  274.)     As  to  the  duties  of  referees,  see 
(Cal.  Pr.  Act,  §§274,  277,  296,)     As  to  judgment  and  sale  of  prop- 
erty, and  proceedings  thereon,  see  (Cal.  Pr.  Act,  §§  278,  309;  consult, 
also,  Waterman  v.  Lawrence,  19  Cal.  210;  Hathaway  v.  De  Sota,  21 
Id.  191;  and  Morenhout  v.  Higuera,  32  Cal.  289;  Sutter  v.  San  Fran- 
cisco, 36  Cal.  112.)     The  effect  of  a  judgment  in  partition  is  to  be 
determined  by  our  statute,  and  not  by  the  common  law.     Id. 

26.  Rents  and  Profits. — One  tenant  in  common  out  of  posses- 
sion may,  in  equity,  as  a  collateral  incident  to  a  claim  for  partition,  com- 
pel his  co-tenant  in  possession  to  account  for  rents  and  profits  received 
by  him  from  tenants  of  the  premises.     State  of  California  v.  Poulterer, 
16  Cal.  514;  Pope  v.  Salmon,  35  Mo.  362. 

27.  Rights  of  Parties. — The  right  of  partition  existing  in  the 
co-tenant  may  be  exercised  at  any  time,  and  may  result  in  the  loss  to 
the  grantee  of  the  particular  parcel  conveyed  to  him.     (Stark  v.  Barret^ 


FOR    PARTITION.  327 

15  Cal.  361.)  The  right  of  the  several  parties  plaintiff  as  well  as  de- 
fendant, may  be  put  in  issue,  tried  and  determined  in  this  action. 
(Cal.  Pr.  Act,  §  271.)  Several  tenants  in  common  may  elect  to  con- 
sider their  rights  as  an  undivided  share  belonging  to  them  all,  and  insti- 
tute a  petition  for  partition  among  themselves,  and  the  other  tenants  in 
common.  (Ladd  v.  Perley,  18  N.H.  395.)  Under  our  practice 
any  question  affecting  the  right  of  the  plaintiff  to  a  partition,  or  the 
rights  of  each  and  all  of  the  parties  in  the  land,  may  be  put  in  issue. 
(De  Uprey  v.  De  Uprey,  28  Cal.  331.)  And  if  disputes  exist  as  to  their 
rights  or  interest  in  any  respect,  such  disputes  may  be  litigated  and  de- 
termined. Morenhaut  v.  Higuera,  32  Cal.  289;  cited  as  authority  in 
Sutler  v.  San  Francisco,  36  Cal.  112. 

28.  Rule  in  Respect  to  Improvements. — In  an  action  for 
partition  by  one  tenant  in  common,  of  lands  granted  his  co-tenants, 
where  the  tenants  have  severally  made  valuable  improvements  on  dis- 
tinct portions  of  the  land  sought  to  be  partitioned,  the  Court,  by  way 
of  interlocutory  decree,  ordered  that  there  be  set  off  to  the  several  par- 
ties such  portions  of   the   premises   as  will   include  their  respective 
improvements,  provided  that  the  rights  or  interests  of  neither  of  the 
other  parties  be  prejudiced  thereby.     Held,  to   be  the  proper  rule. 
Seale  v.  DeSota,  35  Cal.  102. 

29.  Scope  and  Purpose  of  Action. — The  whole  scope  and 
tenor  of  the  provisions  of  the  Act  relating  to  the  partition  of  lands  show 
that  the  intention  was  to  make  the  one  judgment  of  partition  final  and 
conclusive  on  all  parties  interested  in  the  property,  or  any  part  of  it,  of 
whom  the  Court  could  acquire  jurisdiction;  and  such  actions  partake 
more  fully  of  the  rules  and  principles  of  equity  than  of  those  of  law. 
Gates  v.  Salmon,  35  Cal.  576. 

30.  Summons. — The  summons  must  be  directed  to  all  the  joint 
tenants,  and  tenants  in  common,  and  all  persons  having  any  interest  in 
or  any  liens  of  record  upon  the  propeity,  or  any  portion  thereof,  and 
generally  to  all  persons  unknown  who  have  or  claim  any  interest  in  the 
property.     (Cal.  Pr.  Ad,  §  268.)     And  unknown  parties  or  absentees 
from  the  State,  may  be  served  by  publication  upon  affidavit,  showing 
such  facts,  the  summons  in  such  case  to  be  accompanied  by  a  brief  de- 
scription of  the  property.     Cal.  Pr.  Act,  §  269. 

31.  Tenants  in  Common. — When  several  hold  and  are  in  pos- 
session of  real  property,  as  co-parceners,  joint  tenants,  or  tenants  in 


328  FORMS   OF     COMPLAINTS. 

common,  in  which  one  or  more  of  them  have  an  estate  of  inheritance, 
or  for  life  or  lives,  or  for  years,  an  action  may  be  brought  by  one  or 
more  of  such  persons  for  a  partition  therefo.  (Cal.  Pr,  Act,  §  264.) 
A  partition  among  tenants  in  common  should  be  made  of  the  entire 
tract.  One  tenant  in  common  cannot  have  partition  of  a  part  only  of 
the  entire  common  property,  and  have  his  entire  interest  located  on  this 
part.  Sutler  v.  San  Francisco,  36  Cal.  112. 

32.  Title. — In  the  New  York  practice,  it  is  not  necessary  to  state 
the  sources  of  title  in  the  complaint.     (2    Fan  Santv.  Eg,  Pr.  17; 
Bradshaw  v.  Callaghan,  8  Johns.  558.)     But  a  complaint  in  an  action 
for  partition  is  fatally  defective,  if  it  shows  that  the  legal  title  is  in  a  third 
person  as  trustee.     (Stryker  v.  Lynch,  n  N.Y.  Leg.  Obs.  116.)     That 
title  may  be  tried  in  this  action,  see  (De  Uprey  v.  De  Uprey,  27  Cal. 
329;  Morenhout  v.  Higuera,  32  Cal.  289;  affirmed  in  Bollo  v.  Navarro, 
33  Cal.  259;  see  Sutter  v.  San  Francisco,  36  Cal.  112.)     If  the  defend- 
ant claims  as  sole  owner,  and  the  Court  determines  all  the  questions 
at  law,  and  the  decision  is  favorable  to  the  plaintiff,  and  then  disposes 
of  the  equitable  part  of  the  cases  in  favor  of  the  defendant,  the  partition 
will  be  denied.     Bollo  v.  Navarro,  33  Cal.  259. 

33.  Water  Rights. — Water  flowing  in  ditches  cannot  be  parti- 
tioned.    It  may  be  sold,  and  the  proceeds  be  subject  to  distribution. 
(McGillivray  v.  Evans,  27   Cal.  96.)     The  only  partition  that  can  be 
made  is  to  order  a  sale,  and  distribution  of  the  proceeds.     In  an  action 
for  partition  of  a  water  ditch,  an  account  of  the  proceeds  for  water 
rates  can  be  taken,  and  if  one  of  the  tenants  in  common  holds  a  mort- 
gage on  the  interests  of  his  co-tenants,  that  can  be  adjusted  in  the  action, 
by  an  application  of  the  proceeds  of  the  mortgagor's  interest  towards 
the  payment  of  the  same.     Bradley  v.  Harkness,  26  Cal.  69. 

34.  When  Action  "will  Lie. — The  action  may  be  brought  for 
a  partition  by  one  or  more,  according  to  the  respective  rights  of  the 
persons  interested  therein,  and  for  a  sale  of  such  property,  or  a  part 
thereof,  if  it  appear  that  a  partition  cannot  be  made  without  great  pre- 
judice to  the  owners.     (Cal.  Pr.  Act,  §  264.)    A  mere  desire  of  one  of 
the  tenants  in  common,  is  sufficient  to  authorize  the  courts  to  dissolve 
the    relations    existing    between    them.      Bradley    v.    Harkness,    26 
Cal.  69. 

35.  When  Action  -will  not  Lie. — A  petition  for  partition  against 


FOR     PARTITION.  329 

an  executor  for  a  filial  portion,  etc.,  will  not  lie  for  money  or  other  prop- 
erty delivered  by  him  to  a  legatee  for  life.  (Billings  v.  Riddick,  8 
Jones  L.  (N.C.)  163.)  Where  a  tenant  in  common  ousts  his  co-tenant, 
remaining  in  sole  possession,  and  subsequently  purchases  an  outstand- 
ing title,  the  co-tenant  cannot  maintain  an  action  for  partition  or  for  the 
benefit  of  the  purchase  until  he  has  regained  possession.  Rozier  v. 
Johnson,  35  Mo.  326. 


No.  470. 

ii.    By  a  Tenant  in  Common  or  a  Joint  Tenant,  against  a  Co-Ten- 
ant who  has   Wasted  the  Estate. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is  a  tenant  in  common  [or  joint  tenant] 
with  the  defendant,  of  [describe  the  property], 

II.  That  [each  of  them]  is  entitled  to  an  undivided 
[half]  of  the  same. 

III.  That  between  the  ....  day  of ,  18 .  ., 

and   the  ....   day  of ,    1 8 .  . ,  the  defendant 

committed  great  waste  upon  the  same   [cutting  down 
many  valuable  forest  trees,  [or  otherwise  specify  acts  of 
waste~\,  without  the  consent  of  the  plaintiff. 

Wherefore  the  plaintiff  demands  judgment: 

1.  For dollars  damages. 

2.  For  a  partition  of  the  said  premises  in  such  man- 
ner as  to  compensate  him  for  such  damages. 


36.  Relief. — The  plaintiff  can  have  this  relief  in  the  State  of  New 
York.  (3  R  S.N.Y.  (5/4  Ed.}  62 1 ;  2  Id.  335.)  This  form  is  from  the 
New  York  Code  Commissioners'  Book  of  Forms. 


CHAPTER  IV. 

QUIETING    TITLE. 

JVo.  471. 

i.     For  Determination  of  Claims  to  Real  Properly. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  .That  one  A.  B.  is  now  deceased,  and  at  the  time 
of  his  death  was  seized  in  fee  simple  of  certain  real 

property  in  the  Town  of County  of , 

bounded  as  follows  :   [description?^ 

II.  That  in  his  lifetime  the  said  A.  B.  made  and  pub- 
lished his  last  will  and  testament,  whereby  he  devised 
to  the  plaintiff  all  his  said  property. 

III.  That  the  said  A.  B.  died  on  the   ....  day  of 
,   1 8 . . ,  at   

IV.  That  the  said  property  is  now,  and  has  been, 

for  the years  last  past,  in  the  actual  possession  of 

the  plaintiff  [or  is  now,  and  has  been,  for  the 

years  last  past,  in  the  actual  possession  of  the  plaintiff, 
and  was,  during  the years  immediately  preced- 
ing that  period,  in   the  actual*  possession  of  the  said 
deceased]. 

V.  That  the  defendant  unjustly  claims  an  estate  or 
interest  [state  what\  in  said  property. 


FOR    QUIETING    TITLE.  331 

Wherefore,  the  plaintiff  demands  judgment: 

i.  That  the  defendant  be  forever  barred  from  all  claim 
to  any  estate  of  inheritance  or  freehold  in  the  said 
property. 


1.  Abatement. — The  pendency  of  an  action  to  quiet  title  to  land 
will  not  abate  a  subsequent  action  between  the  same  parties,  to  recover 
possession  of  the  same  land  in  which  the  same  facts  are  litigated. 
Bolton  v.  Landers  (No.  i),  27  Cal.  104. 

2.  Action  to  Quiet  Title. — The  object  of  this  action  is  to  deter- 
mine an  estate  held  adversely  to  the  plaintiff  to  remove  what  would 
otherwise  be  a  cloud  upon  his  own  title;  or  it  may  be  in  the  nature  of 
a  bill  to  enforce  a  transfer  of  the  interest  from  the  patentee,  on  the 
ground  that  the  latter  has,  by  mistake  or  fraud,  acquired  a  title  in  his 
own  name,  which  he  should  in  equity  hold  for  the  benefit  of  the  com- 
plainant.    (Boggs  v.  Mercer  Mining  Co.,  14  Cal.  279.)    The  true  test 
by  which  the  question  whether  a  deed  would  cast  a  cloud  upon  the  title 
of  the  plaintiff  may  be  determined,  is  this:    Would  the  owner  of  the 
property,  in  an   action  of  ejectment  brought  by  the  adverse   party, 
founded  upon  the  deed,  be  required  to  offer  evidence  to  defeat  a  recov- 
ery?    If  such  proof  would  be  necessary,  the  cloud  would  exist;  other- 
wise not.     (Pixley  v.  Huggins,  15  Cal.  128.)     This  action  embraces 
every  description  of  claim,  whereby  the  plaintiff  might  be  deprived  of 
the  property,  or  its  title  be  clouded,  or  its  value  depreciated,  or  where- 
by he  might  be   incommoded,  or   damnified  by  the   assertion  of  an 
outstanding  title  already  held,  or  to  grow  out  of  the  adverse  pretension. 
Head  v.  Fordyce,  17  Cal.  149. 

3.  Action,  "when  it  Lies. — Where  an  instrument  is  outstanding 
against  a  party,  which  is  void,  or  an  unfounded  claim  is  set  up,  which  he 
has  some  reason  to  fear  may  at  some  time  be  used  injuriously  to  his 
rights,  thereby  throwing  a   cloud   over   his  title,    equity   will   inter- 
fere, and  grant  the  appropriate  relief.     (21  Conn.  488;  19  N.H.  91;  3 
P.    Wins.  296;    i  Hemp.  692;  13  Pet.  203;   18  N.Y.   515;  Ward  v. 
Chamberlain,  2  Black.  430.)     In  Massachusetts,  a  petition  will  not  lie 
on  behalf  of  the  assignee,  for  an  insolvent  debtor,  to  compel  a  prior 
mortgage  from  the  same  debtor  to  bring  an  action  to  test  the  validity  of 
a  mortgage.     (Hill  v.  Andrews,   12  Cush.  185;  Dervey  v.  Buckley,  i 


332  FORMS   OF    COMPLAINTS. 

Gray,  416.)  Nor  will  a  citizen  of  another  state,  of  a  foreign  country, 
be  ordered  to  bring  an  action,  to  try  his  title  to  real  estate  in  Massachu- 
setts, on  the  petition  of  a  party  in  possession.  (Macomber  v.  Jaffray, 
4  Gray,  82;  see  4  Allen,  150.)  This  action  lies  where  an  adverse  claim 
is  prima  facie  sustainable,  though  actually  bad,  as  it  constitutes  a  cloud. 
(Tisdale  v.  Jones,  38  Barb.  523.)  It  may  be  maintained  for  the  satis- 
faction upon  the  record  of  judgments,  apparently  liens,  but  in  fact  paid; 
(Shaw  v.  Dwight,  27  N.Y.  244;)  for  the  discharge  from  the  record 
of  a  mortgage,  claimed  to  be  satisfied;  (Beach  v.  Coke,  28  N.Y.  508;) 
and  for  the  extinguishment  of  a  widow's  prima  facie  claim  to  dower. 
Wood  v.  Seeley,  32  N.Y.  105. 

4.  Action  -will  not  Lie. — A  suit  for  this  purpose  will  not  lie 
where  the  facts  alleged,  if  true,  would  not  legally  affect  the  plaintiff's 
title.     (Farnham  v.  Campbell,  34  N.Y.  480;  Hotchkiss  v.  Etting,  36 
Barb.  38;  Johnston  v.  Crane,  40  Barb.  78;  Butler  v.  Viele,  44  Barb. 
1 66.)    Nor  will  allegations  of  mere  threats,  assertions,  or  designs  to 
disturb  the  possession  of  the  grantee,  avail  to  sustain  this  form  of  relief. 
Madison  Av.  Baptist  Church  v.  Viele,  26  How.  Pr.  72. 

5.  Adverse  Possession. — Adverse  possession  which  will  set  the 
statute  of  limitations  running  is  of  two  kinds.     First,  Where  posses- 
sion is  taken  without  color  of  title,  but  with  intent  to  claim  the  fee 
against  all  comers.     (28    Cal.    605.)      Second,    Where   possession   is 
taken  under  a  claim  of  title,  founded  on  a  written  instrument  or  judg- 
ment of  a  court  of  competent  jurisdiction.     (Kimball  v.  Lohmas,  31 
Cal.   54.)     Actual  adverse  and  undisturbed  possession  of  land,  for  a 
period  exceeding  the  time  prescribed  by  statute  for  the  enforcement  of 
a  right  of  entry,  gives  to  the  possessor  a  right  of  undisturbed  enjoyment 
equivalent  to  a  perfect  title.     (Simpson  v.  Eckstein,  22  Cal.  580;  see 
Le  Roy  v.  Rogers,  30  Cal.  229.)     An  open,  notorious,  exclusive  adverse 
possession  for  twenty  years  would  operate  to  convey  a  complete  title  to 
the  plaintiff,  as  much  so  as  any  written  conveyance,  a  title  of  the  highest 
character,  the  absolute  dominion  over  it.     Leffingwell   v.  Warren,  2 
Black.  605;  to  the  same  effect,  Taylor  v.  Horde,  i  Burr.  119;  Stokes 
v.  Berry,  2  Salk.  421;  Drayton  v.  Marshall,  i  Rids'  Eq.  385:  Jackson 
v.  Oltz,  8   Wend.  440;  Jackson  v.  Deffendorf,  3  John.  269;  Jackson  v. 
Rightmeyer,  16  Johns.  327;  Broadstreet  v.  Huntington,  5   Pet.  438; 
Thompson  v.  Green,  4  O.  Stat.  223;  Newcombe  v.  Leavitt,  21  Ala. 
631;  Chiles  v.  Dana,  4  Dana,  483;  Pendleton  v.  Alexander,  8  Cranch, 
462;  see  Arrington  v.  Liscom,  34  Cal.  381,  and  cases  there  cited. 


FOR   QUIETING   TITLE.  333 

6.  Averments  in  Complaint. — In  an  action  brought  by  one  in 
•possession  of  land,  to  try  and  determine  an  adverse  claim  set  up  by 

one  out  of  possession,  when  the  complaint  avers  that  the  defendant  sets 
up  an  adverse  claim,  without  stating  what  it  is,  and  the  answer  admits 
plaintiff's  possession,  and  sets  up  the  particulars  of  the  defendant's 
alleged  title,  the  burden  of  proof  is  cast  upon  the  defendant.  (Crook  v. 
Forsyth,  30  Cal.  662.)  Action  to  determine  an  adverse  claim  to  land, 
the  complaint  averring  that  the  plaintiff,  who  was  in  possession, 
deraigned  title  through  a  deed  from  G.  Answer,  that  previous  to  the 
execution  of  G.'s  deed,  the  land  was  attached  at  suit  of  a  creditor  of 
his,  and  was  subsequently  in  due  course  sold  by  the  sheriff,  at  which 
sale  defendant  became  the  purchaser.  Replication,  that  a  portion  of 
the  debt,  on  which  the  attachment  issued  was  secured  by  a  colatteral 
note,  and  that  the  attachment  was  therefore  void.  Held,  that  on  these 
pleadings,  in  the  absence  of  proof,  judgment  was  properly  entered  for 
defendant;  that  if  plaintiff  had  the  right  to  attack  the  attachment  in  this 
form  (a  point  not  decided),  the  burden  of  the  proof  was  on  him  to 
show  that  the  attachment  debt  was  collaterally  secured.  Bostwick  v. 
McCorkle,  22  Cal.  669. 

7.  Cancellation  of  Deed. — Where  husband  and  wife  execute  a 
conveyance  of  their  homestead,  which  the  husband  delivers  to  the  pur- 
chaser before  the  purchase  money  therefor  is  paid,  which  is  afterward 
fraudently  attached,  in  a  suit  brought  by  the  real  though  not  ostensible 
purchaser,  against  the  husband  alone  :  Held,  that  equity  will  compel  a 
cancellation  of  the  deed  so  obtained.     Still  v.  Saunders,  8  Cal.  281. 

8.  Cause  of  Action. — As  to  what  are  the  facts  necessary  to  con- 
stitute the  cause  of  action,  see  the  provisions  of  the  statute.     (Cal.  Pr. 
Act,  §  254-255.)     In  New  York,  (2  Rev.  Stat.  312  ;  Laws  of  1848, 
67  ;  1854,  276  ;  1855,  943,  ch.  511  ;  Hager  v.  Hager,  38  Barb.,  92.) 
So,  where  one  has  an  outstanding  deed  which  improperly  clouds  the 
title  of  the  true  owner,  on   the  application  of  the  latter,  chancery  will 
order  such  deed  to  be  cancelled  and  anmulled.     (Shattuck  v.  Carson,  2 
Cal.  589.)     Or  it  will  interfere  and  prevent  a  sale,  and  the  consequent 
execution  of  an  improper  deed.     Id. 

9.  Clouds  on  Title. — Every  deed  from  the  same  source  through 
which  plaintiff  derives  his  real  property,  if  valid  on  its  face,  is  a  cloud 
on  the  title.     (Pixley  v.  Huggins,  15  Cal.  127.)    A  sale  by  a  sheriff,  of 
real  estate,  upon  an  execution,  against  the  grantor,  will,  even  if  not 


334  FORMS    OF     COMPLAINTS. 

effectual  to  pass  the  title  to  the  purchaser,  create  a  doubt  as  to  the  valid- 
ity of  the  grantee's  title,  and  cast  a  cloud  upon  it,  and  the  grantee  can 
maintain  an  action  to  enjoin  the  sale.  (Englund  v.  Lewis,  25  Cal. 
357.)  And  a  sheriffs  deed  upon  an  execution  sale  would  have  the 
same  effect  in  casting  a  cloud  as  a  deed  made  directly  by  the  vendor. 
(Id.;  Alverson  v.  Jones,  10  Cal.  9.)  So,  when  a  homestead  was  sold 
by  the  sheriff.  (Riley  v.  Pehl,  23  Cal.  70.)  So,  a  sale  by  an  adminis- 
trator of  land,  once  the  property  of  the  intestate,  but  sold  during  his 
lifetime,  will  cast  a  cloud  on  the  intestate's  prior  grantee's  title.  (Thomp- 
son v.  Lynch,  29  Cal.  189.)  An  apparently  good  record  title  to  land 
constitutes  a  cloud  on  the  title  thereof  which  has  been  subsequently 
acquired  by  adverse  possession  under  the  statute  of  limitations.  (Ar- 
rington  v.  Liscom,  34  Cal.  365.)  The  true  test  by  which  the  question, 
whether  a  deed  would  cast  a  cloud  upon  the  title  of  the  plaintiff,  may  be 
determined,  is  this  :  Would  the  owner  of  the  property,  in  an  action  of 
ejectment  brought  by  the  adverse  party,  founded  on  the  deed,  be  re- 
quired to  offer  evidence  to  defeat  a  recovery  ?  If  such  proof  would  be 
necessary,  the  cloud  would  exist,  otherwise  not.  (Pixley  v.  Huggins, 
15  Cal.  127.)  An  order  of  a  Board  of  Supervisors  laying  out  a  road, 
which  is  unconstitutional,  and  null  and  void  upon  its  face,  does  not 
affect  or  cloud  the  title  to  the  land  over  which  it. passes.  Leach  v.  Day, 
27  Cal.  643. 

10.  Confirmation  of  Surveys. — The  system   of  locating  by 
final  survey  Mexican  and  Spanish  grants  of  land  in  California,  under 
the  Act  of  Congress  of  March  3,  1851,  was  essentially  modified  by  the 
Act  of  Congress  of  June  i4th,  1860.     The  proceedings  had  under  this 
Act  after  the  return  of  the  survey  and  plot  into  the  District  Court,  are 
strictly  judicial  in  their  character,  and  the  decree  rendered  thereon  is 
final  and  conclusive  to  all  parties  to  it.     If  after  a  decree  confirming  a 
survey,  a  decree  is  made  confirming  a  survey  of  another  prior  grant 
covering  the  same  land,  and  the  confirmee  in  the  first  decree  is  a 
party  to  the  second  decree,  consenting  thereto,  he  is  bound  by  it. 
Treadway  v.  Semple,  28  Cal.  66 1;  Waterman  v.  Smith,  13  Cal.  373; 
Semple  v.  Wright,  32  Cal.  659;  cited  in  Yates  v.  Smith  (Nos.  i  and  2), 
Cal.  Sup.  Cf.,  July  T.,  1869;  decided  on  the  authority  of  Rodriguez  v. 
United  States,   i   Wall.  U.S.  587;  see,.also,  Toland  v.  Mandell,  Cal. 
Sup.  Ct.  July  T.,  1869. 

11.  Description. — In  case  of  a  lease  of  a  lot  by  its  number, 
followed  by  a  description  by  metes  and  bounds,  which  included  lands 


FOR    QUIETING   TITLE.  335 

which  the  lessor  never  owned,  the  description  by  metes  and  bounds 
was  rejected,  and  the  one  by  number  was  taken  as  the  true  description. 
(Lusk  v.  Douse,  4  Wend.  313;  followed  in  Piper  v.  True,  Cal.  Sup. 
Ct.,  Oct.  T.,  1869.)  Where  the  first  and  third  calls  of  a  deed  are' 
general,  and  the  second,  fourth,  and  fifth  calls  are  particular,  the  latter 
are  not  restrictions  or  limitations  on  the  former.  Piper  v.  True,  Cal. 
Sup.  Ct.  Oct.  T.,  1868. 

12.  Disclaimer. — If  the  defendant  disclaim  in  his  answer  any 
interest  or  estate  in  the  property,  or  suffer  judgment  to  be  taken  against 
him  without  answer,  the  plaintiff  shall  not  recover  costs.    Cal.  Pr.  Ac/, 
§255- 

13.  Facts  to  be  Alleged. — In  an  action  to  remove  a  cloud,  the 
facts  which  show  the  apparent  validity  of  the  instrument  which  is  said 
to  constitute  the  cloud,  and  also  the  facts  showing  its  invalidity,  ought 
to  be  stated.    To  merely  name  the  instrument  would  not  ordinarily  be 
sufficient,  but  where  the  instrument  is  a  tax  deed,  we  think  the  name 
sufficient  for  the  purpose  of  showing  its  apparent  validity.     Hibernia 
Sav.  and  Loan  Society  v.  Ordway,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

14.  Form. — This  form  was  adopted  in  the  New  York  Commis- 
sioners' Report,  p.  104.     The  proceeding  is  now  an  action  under  the 
Code.      Mann  v.  Provost,  3  Abb.  Pr.  446;  Hammond  v.  Tilloston,  18 
Barb.   332;   Stryker  v.  Lynch,   n    N.F.  Leg.    Obs.    116;    Fonda  v. 
Sage,  46  Barb.  109. 

15.  Injunction. — As  to  when  injunction  will  be  issued  to  restrain 
a  sale   of  lands  which   would   cast  a  cloud  on  plaintiffis  title,  see 
" Injunction"  Vol.  iii. 

16.  Jurisdiction. — A  court  of  equity  has  jurisdiction  at  the  suit  of 
the  judgment-creditor,  who  has  purchased  land  at  sheriff's  sale,  and  re- 
ceived a  sheriff's  deed  therefor,  to  annul  and  set  aside,  as  a  cloud  upon 
title,  a  deed  of  the  land  given  to  defraud  the  creditor  before  the  re- 
covery of  judgment.     (Hager  v.  Shindler,  29  Cal.  47.)     The  courts  of 
the  United  States  may  entertain  jurisdiction  in  chancery,  to  grant  per- 
petual injunctions  for  quieting  inheritances,  after  the  title  has  been  fairly 
settled.     (Wickliffe  v.  Owings,  17  How.  Pr.  47.)     And  citizens  of  other 
states  have  a  right  to  come  into  such  courts,  to  have  the  rights  secured 
them  under  the  laws  of  other  states,  protecting  individual  rights  to  the 
soil  of  such  states.     Clarke  v.  Smith,  13  Pet.  195;  Parker  v.  Overman, 
1 8  How.  U.S.  137;  Bayerque  v.  Cohen,  i  Me  All.  113. 


FORMS   OF     COMPLAINTS. 

17.  Laid  out  in  Lots. — Where  land  has  been  laid  out  in  lots 
and  divided  among  many  occupants,  a  bill  will  lie,  although  complain- 
ants had  a  legal  title  and  a  remedy  at  law  in  each  several  case.     Crews 
v.  Burcham,  I  Slack.  352. 

18.  Land  Bounded  by  River. — In  an  action  to  determine  the 
adverse  claim  to  land  lying  on  both  sides  of  a  river,  if  the  plaintiff  shows 
a  right  to  only  that  portion  of  the  land  on  the  north  side  of  the  river, 
he  is  not  entitled  to  recover  with  respect  to  that  located  on  the  south 
side.     Van  Vleet  v.  Olin,  4  Nev.  95. 

19.  Limitations,  Statute  of. — Adverse  possession  of  land  for 
the  time  required  by  the  Statute  of  Limitations  gives  an  absolute  right 
to  the  party  in  possession,  and  entitles  him  to  all  the  remedies  given  by 
the  law  to  quiet  his  possession.     He  may  therefore  maintain  an  action 
against  the  party  having  the  record  title,  to  have  the  same  declared 
void.     Arrington  v.  Liscom,  34  Cal.  365. 

20.  Location  on  State  Lands. — No  right  of  the  locator  on 
state  lands  in  the  Statutes  of  California,   1863,  600,  §  29,  inchoate  or 
otherwise,  attaches,  till  the  certificate  of  the  oath  prescribed  by  the 
twenty-eighth  Section,  indorsed  on  a  description  of  the  land,  is  filed  in 
the  Office  of  the  County  Recorder.     Kitchum  v.  Dunn,  Cal  Sup.  C/., 
Jul.  T.,  1869. 

21.  Mining  Claims. — Mining  claims  fall  within  the  operation 
of  Section  254  of  the  California  Practice  Act.     (Merced  Mining  Co. 
v.  Fremont,  7  Cal.  319.)   To  quiet  title  to  quartz  mining  claim,  located 
on  the  public  lands  of  the  United  States,  a  possessory  title  thereto 
is  sufficient  to  maintain  the  action,  by  a  party  in  possession,  as  against 
one  out  of  possession.  (Pralus  v.  Pacific  G.  and  S.  M.  Co.,  35  Cal. 
30.)    The  eleventh  Section  of  the  Act  of  March,  1856,  "For  the  Pro- 
tection of  Actual  Settlers,  and   to  Quiet  Land  Titles  in  this  State" 
(California),  does  not  apply  to  miners  engaged  in  simply  extracting 
gold  from  a  quartz  vein.     They  are  not  "  settled  upon  "  in  the  sense 
of  the  statute,  and  the  two  years'  limitation  of  that  section  cannot 
avail  them.     (Fremont   v.  Seals,    18    Cal.    435.)     This   section   only 
applies  to  actions  brought  to  recover  the  possession  of  lands,  after  the 
issuance  of  a  patent.     (Morton  v.  Folger,  15  Cal.  275.)    F.,  defendant, 
began  suit  against  the  Volcano  Water  and  Mining  Company,  to  subject 


FOR    QUIETING    TITLE.  337 

to  sale  the  ditch  of  that  name,  including  aqueducts,  flumes,  culverts, 
dams,  cabins,  etc.,  in^nforcement  of  a  mechanic's  lien.  Subsequently, 
the  ditch,  etc.,  was  sold  on  a  judgment  in  favor  of  one  H.,  and  pur- 
chased by  S.,  from  whom  plaintiff,  as  judgment-creditor  of  the  company, 
redeemed,  and  in  due  time  received  the  sheriff's  deed.  Afterward, 
F.  had  a  decree  directing  a  sale  of  the  ditch,  etc.,  to  satisfy  his  lien. 
Plaintiff  sues  to  quiet  title,  alleging  that  F.'s  decree  in  fraudulent,  that 
he  had  no  lien,  and  that  he  is  about  enforcing  the  decree,  which  is  a 
cloud  on  plaintiffs  title.  Held,  that,  aside  from  any  question  of  fraud, 
the  action  lies;  that  the  existence  of  a  decree,  founded  upon  proceed- 
ings taken  prior  to  plaintiffs  title,  and  seeking  to  condemn  the  property 
by  virtue  of  an  asserted  lien  older  than  such  title,  would  be  a  cloud 
upon  that  title.  Head  v.  Fordyce,  17  Cal.  149. 

22.  Municipal  Corporation. — A  municipal  corporation  cannot 
invoke  the  aid  of  a  court  of  equity  to  set  aside  a  grant  made  by  its 
authorities,  when  the  grant  is  void.     Such  a  grant  being  a  nullity,  casts 
no  cloud  upon  the  title  of  the  corporation.    Oakland  v.  Carpentier,  21 
Cal.  642. 

23.  Notice.^-In  an  action  to  quiet  title,  against  parties  claiming 
from  the  same  source  of  title  through  a  prior  unrecorded  conveyance, 
it  is  necessary  to  aver  want  of  notice  of  the  conveyance.     Lawton  v. 
Gordon,  34  Cal.  36. 

24.  Parties. — An  action  to  quiet  title  may  be  brought  by  any 
person  in  possession,  by  himself  or  his  tenant,  against  any  person  who 
claims  an  estate  or  interest  adverse  to  him,  for  the  purpose  of  determin- 
ing such  adverse  claim,  estate  or  interest.     (Cal.  Pr.  Act,  §  254;  Horn 
v.  Jones,  28  Cal.  194.)     And  no  other  evidence  than  proof  of  posses- 
sion is  necessary  in  the  first  instance.      But  it  cannot  be  maintained  by 
a  landlord  against  his  tenant  in  possession,  for  the  purpose  of  determin- 
ing the  validity  of  an  adverse  title  set  up  by  the  tenant.     (Van  Wm'de 
v.  Hinckle,  21  Cal.  342.)     Until  administration  of  an  estate  is  ended,  an 
administrator  is  the  proper  party  plaintiff  in  an  action  to  quiet  title  to 
the  estate.     (Curtis  v.  Sutler,  15  Cal.  259.)     One  tenant  in  common  of 
real  property,  in  the  actual  possession  thereof,  may  maintain  an  action 
under  the  two  hundred  and  fifty-fourth  section  of  the  Practice  Act,  to 
determine  the  validity  of  an  adverse  claim  of  title  thereto  by  a  co-tenant. 
Ross  v.  Heintzen,  36  Cal.  313. 

25.  Parties  Defendant. — Any  person  in  possession  may  bring 

22 


338  FORMS    OF     COMPLAINTS. 

this  action  against  any  party  who  claims  an  estate  or  interest  adverse  to 
him.  (Merced  Mining  Co.  v.  Fremont,  7  Cal,  y  9.)  And  the  action 
may  be  brought  by  the  party  in  possession,  without  waiting  until  he  has 
been  disturbed  in  his  possession  by  legal  proceedings  against  him,  in 
which  his  title  has  been  successfully  maintained.  Merced  Mining  Co. 
v.  Fremont,  7  Cal.  319;  Curtis  v.  Sutler,  15  Cal.  259. 

26.  Possession  Necessary. — The  plaintiff  cannot  prevail  with- 
out allegation  and  proof  of  possession  at  the  time  of  the  action,  if  the 
allegation  of  possession  is  denied  by  the  answer.     (Horn  v.  Jones,  28 
Cal.  194;    Brooks  v.  Calderwood,  34  Cal.  563;  Pralus  v-.  Jefferson  G. 
and  S.  M.  Co.,  34  Cal.  558;  cited  in  Nevada  Co.  and  Sac.  Co.  Can.  Co. 
v.  Kidd,  Cal.  Sup.  Ct.,  Apl  T.,  1869;    see  Lake  Bigler  Road  Co.  v. 
B*edford,  3  Nev.  399.)     It  lies  with  reference  to  property  of  which  the 
plaintiff  is  in  possession.     (Curtis  v.  Sutler,  15  Cal.  259.)     An  action 
cannot  be  maintained  for  the  purpose  of  determining  an  adverse  claim 
to,  or  estate  or  interest  in  real  property,  under  Section  two  hundred  and 
fifty-four  of  the  Practice  Act,  unless  the  plaintiff,  at  time  of  the  com- 
mencement of  the  action,  is  in  the  actual  possession  of  the  property 
himself,  or  in  possession  by  his  tenant.     (Ferris  v.  Irving,  28  Cal.  645; 
Lyle  v.  Rollins,  25  Cal.  437;  Rico  v.  Spence,  21  Cal.  504.)     No  mat- 
ter how  such  possession  was  acquired,  whether  peaceably  or  forcibly. 
(Reed  v.  Calderwood,  32  Cal.  109.)     To  maintain  a  suit  to  quiet  title 
by  a  party  in  possession,  it  is  enough  that  he  claims  under  a  deed  which 
creates  an  equitable  estate,  or  even  a  right  of  possession.     (Smith  v . 
Brannan,  13  Cal.  107.)     One  in  possession  of  property,  claiming  title 
under  a  sheriffs  deed,  executed  on  a  mortgage  foreclosure,  may  main- 
tain an  action  to  quiet  his  title,  against  another  who  claims  a  title  against 
him,  which  would  be  good  against  the  mortgagor,  although  void  as 

.against  the  plaintiff.  (Horn  v.  Jones,  28  Cal.  194.)  The  plaintiff 
.cannot  prevail  without  proof  of  possession  at  the  time  of  commencing 
suit,  if  the  allegation  of  possession  is  denied  by  the  answer.  Brooks  v. 
Calderwood,  34  Cal.  563. 

27.  Possession  of  Part. — Where  suit  is  brought  under  Section 
two  hundred  and  fifty-four  to  quiet  title  to  a  ranch,  and  plaintiff  is  in 
possession  of  a  portion  only,  the  suit  must  be  considered  as  brought  to 
determine  the  title  to  that  portion,  and  no  injunction  lies  to  restrain 
parties  who  are  entire  strangers  to  the  title  from  selling  that  portion,  as 
their  conveyance  would  not  cloud  plaintiffs  title.     And  if  the  grantees 
under  such  conveyance  should  invade  the  possession  of  plaintiff,  or  un- 


FOR    QUIETING   TITLE.  339 

lawfully  detain  the  same,  the  remedy  at  law  is  ample.  (Curtis  v.  Sut- 
ter,  15  Cal.  259.)  Where  the  plaintiff  for  some  years  lived  upon  and 
occupied  a  part  of  the  land,  claiming  the  whole,  while  there  is  no  other 
party  in  adverse  possession  of  the  part  in  controversy,  this  extended  his 
possession  to  the  bounds  of  the  deed  within  the  case  of  Hicks  v.  Cole- 
man,  25  Cal.  132. 

28.  Public  Lands. — Congress  has  power  to  withdraw  the  public 
lands  from  pre-emption  and  sale  under  the  general  laws,  at  any  time 
before  the  aquisition  of  the  settler  of  a  right  to  the  lands,  that  he  could 
maintain  against  the  United  States,  so  as  to  secure  ultimately  the  legal  title; 
(Page  v.  Fowler,  28  Cal.  609;)  at  any  time  before  payment  has  been 
made  for  the  same  to  the  United  States.     (People  v.  Shearer,  30  Cal. 
650;  referring  to  Hastings   v.  McGoogan,  27  Cal.  85;   and  Page  v. 
Hobbs,  Id.  487;  see  8  Opin.  Atty.  Gen.,  71;  10  Id.  57;  n  Id.  491; 
Bowen  v.  Higbee,  9  Mo.  261;  O'Hanlon  v.  Perry,  Id.  808;  Hale  v. 
Gaines,  22  How.  U.S.  161;  cited  in  Hutton  v.  Grigsbee,  Cal.  Sup.  Ct., 
Jul.   T.,   1869.)     Upon  the   authority  of  which   case,  were  decided,  • 
Knowles  v.  Greenwood;  True  v.  Tormly;  Fowler  v.  Frisbie  (Nos.   i 
and  2);  True  .v.  Thomas;  and  Valentine  v.  Thompson;  at  the  same 
term  of  the  Supreme  Court. 

29.  Public  Lands,  Entry  upon. — When  a  party  is  authorized 
by  an  act  of  Congress  generally  to  enter  "in  any  land  office,"  etc.,  "a 
quantity  of  land  not  exceeding,"  etc.,  he  is  limited  in  his  selection  to 
lands  subject  to  location,  and  cannot  take  lands  already  sold,  or  reserved 
from  sale,  or  upon   which   a  pre-emption  or   some   other   right  has 
attached,  under  a  law  which  is  still  in  force,  and  which  "covers,"  and 
protects  it.     (Chotard  v.  Pope,  12  Wheat.  587;  Lytle  v.  State  of  Arkan- 
sas, 9  How.  U.S.  333;  cited  in  Hutton  v.  Frisbee,  Cal.  Sup.  C.,  Jul. 
T.,  1869.)     Congress,  in  the  passage  of  the  act  of  July  i,  1864,  had  in 
view  the  individual  interests  of  bona  fide  settlers  upon  small  parcels  of 
public  lands,  as  well  as  the  common  interests  of  a  community  of  per- 
sons so  contiguously  settled  as  to  justify  the  establishment  of  a  town  or 
city,  and  did  not  intend  the  act  for  the  especial  benefit  of  municipal 
corporations,  and  to  authorize  .under  its  sanction  an  appropriation  of 
private  property  to  public  use,  without  compensation,  or  an  arbitrary 
confiscation  of  rights  of  property  for  the  benefit  of  municipal  associa- 
tions or  corporations.     So  held  in  an  action  where  the  defendant,  a  cor- 
poration, had  laid  out  a  plaza,  including  a  portion  of  the  plaintiff's  land, 
settled  upon  for  private  use.     (Jones  v.  City  of  Petaluma,  Cal.  Sup.  Ct., 


34°  FORMS   OF    COMPLAINTS. 

Oct.  T.,  1869.)  To  the  same  effect,  held,  in  a  case  where  the  land  was 
claimed  by  the  corporation  as  a  public  street.  See  Alemany  v.  City  of 
Petaluma,  decided  at  the  same  term. 

30.  Relief. — If  the  claimant  makes  out  his  title,  he  is  entitled  to 
a  decree  which  will  remove  the  cloud,  but  the  Court  cannot  order  the 
land  to  be  sold  for  payment  of  the  "debt  found  due  by  the  original  decree. 
(Wand  v.  Chamberlain,  2  Black.  430;  Laws  of  N.Y.,  1855,  ch.   511, 
§  3.)    The  judgment  in  such  an  action  may  contain  a  clause  perpetu- 
ally restraining  the  defendant  from  further   setting  up   the   claim  so 
adjudged  to  be  invalid.     (Brooks  v .  Calderwood,  34  Cal.  563.)     In  an 
action  brought  in  the  usual  form,  to  quiet  title,  the  Court  will  not  decree 
a  specific  performance  of  an  agreement  of  the  defendant  to  convey  to 
the  plaintiff's  executor.   '(Killey  v.  Wilson,  33  Cal.  691.)    Where  one 
has  an  outstanding  deed  which  improperly  clouds  the  title  of  the  true 
owner,  chancery  will  order  such  deed  to  be  canceled  and  annulled. 
(Shattuck  v.  Carson,  2  Cal.  588.)    And  a  decree  pronouncing  that  a 

, conveyance  is  fraudulent  and  void  has  the  result  to  remove  any  cloud 
resulting  from  its  execution.  (Gibbons  v.  Peralta,  21  Cal.  629.)  So, 
a  judgment  in  favor  of  the  plaintiff,  in  an  action  to  set  aside  a  deed  as 
a  cloud  upon  the  plaintiff's  title,  has  a  like  effect,  and  is  an  adjudication 
that  the  title  is  in  the  plaintiff.  Marshall  v.  Shafter,  32  Cal.  176. 

31.  Right  of  Action. — Plaintiff  has  a  right  to  be  quieted  in  his 
title  whenever  any  claim  is  made  to  real  estate  of  which  he  is  in  pos- 
session, the  effect  of  which  claim  might  be  litigation  or  the  loss  of  his 
property.     Head  v.  Fordyce,  17  Cal.  149.)     So,  a  party  has  a  right  to 
have  his  title  to  land  protected  from  a  sale  which  may  create  a  cloud 
upon  it.     (Guy  v.  Hermance,  5    Cal.  73.)     This  section  authorizes  the 
interposition  of  equity  in  cases  where  previously  bills  of  peace  would 
not  lie.     (Curtis  v.  Sutter,  15  Cal.  259.)     It  enlarges  the  class  of  cases 
in  which  equitable  relief  could  formerly  be  sought  in  quieting  title. 

32.  Rights  of  Parties. — A  party's  right  is  limited  to  the  object 
for  which  it  was  acquired,  and  another  party  may  acquire  another  right 
for  similar  or  other  purposes,  not  in  conflict  with  the  prior  right.     Hof- 
ner  v.  Stone,  7  Cal.   49;  O'Keefe  v.  Cunningham,  9  Cal.  590,  and 
cases  cited;  Nev.  Co.  and  Sac.  Co.  Canal  Co.  v.  Kidd,  Cal.  Sup.  Ci., 
Apl  T.,  1869. 

33.  Title. — In  actions  to  remove  a  cloud  upon  title,  the  sources  of 
plaintiff's  title   need  not  be  alleged.     (Lash  v.  Perry,   19  Ind.  322.) 


FOR    QUIETING    TITLE.  341 

The  facts  constituting  plaintiff's  title  and  the  cloud  thereon  should  be 
distinctly  shown.  (Williams  v.  Ayrault,  31  Barb.  364.)  Title  in  fee 
is  not  necessary,  the  allegation  of  a  limited  or  equitable  estate  is  suffi- 
cient. (Craft  v.  Merrill,  14  N.Y.  456;  Lounsbury  v.  Purdy,  18 
N.Y.  515.)  In  an  action  to  quiet  title  to  a  quartz  claim,  a  posses- 
sory title  thereto  is  sufficient  to  maintain  the  action  by  a  party  in  posses- 
sion as  against  one  out  of  possession.  (Pralus  v.  Pacific  G.  and  S.M.  Co., 
35  Cal.  30.)  But  he  must  possess  a  title  superior  to  that  of  his 
adversary,  and  of  course  to  that  of  the  Government  through  whom  his 
adversary  claims,  or  he  must  possess  equities  which  will  control  the  title 
in  his  adversary's  name.  (Boggs  v.  Merced  Mining  Co.,  14  Cal.  279.) 
In  New  York,  these  allegations  are  mutually  dependent.  They  may  be 
varied  according  to  the  actual  source  of  the  plaintiff's  title.  2  Rev. 
Stat.  N.Y.,  313,  §2. 

34.  Who  Bound  by  Judgment. — One  who  purchases  from  the 
defendant,  during  the  pendency  of  an  action  to  quiet  title,  in  which 
action  a  Us  pendens  has  been  filed,  is  bound  by  the  judgment  rendered 
therein.  Haynes  v.  Calderwood,  23  Cal.  409. 


JVo.  472. 

ii.     The  Same — Another  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  TJpat  he  is  now,  and  for  a  long  time  hitherto  has 
been  in  the  possession  of  that  certain   lot,  piece,  or 
parcel  of  land,  situated,  lying  and  being  in  the  County 

of ,  State  of .  . ,  and  bounded  and  de- 

acribed  as  follows,  to  wit :   [describe  property^ 

II.  That  the  said  plaintiff  claims  title  in  fee  to  the 
said  premises,  and  that  the  said  defendant  claims  an 
estate  or  interest  therein  adverse  to  the  said  plaintiff. 

III.  That  the  claim  of  the  said  defendant  is  with- 
out any  right  whatever,  and  that  the  said  defendant  has 


342  FORMS    OF    COMPLAINTS. 

not  any  estate,  right,  title,  or  interest  whatever  in  said 
land  or  premises,  or  any  part  thereof. 

Wherefore  the  plaintiff  prays: 

1.  That    the    defendant    may    be    required    to    set 
forth  the  nature  of  his  claim,  and  that  all  adverse  claims 
of  the  defendant,  may  be  determined  by  a  decree  of 
this  Court. 

2.  That  by  said  decree  it  be  declared  and  adjudged 
that   the   defendant   has    no  estate    or   interest  what- 
ever in  or  to  said  land  and  premises;  and  that  the  title 
of  plaintiff  is  good  and  valid. 

3.  That  the   defendant  be    forever  debarred   from 
asserting  any  claim  whatever  in  or  to  said  land  and 
premises,  adverse  to  the  plaintiff;  and  for  such  other 
relief  as  to  this  honorable  Court  shall  seem  meet  and 
agreeable  to  equity,  and  for  his  costs  of  suit. 


No.  473. 

iii.     The  Same — Another  Form. 
[TITLE.]  » 

The  plaintiff  complains  and  alleges: 

I.  That  on  the  ....  day  of ,  1 8 .  . ,  he  com- 
menced an  action  in  the  [state  the  court],  against  the 
said  C.  D.  and  one  E.  F.,  and  afterwards,  to  wit:  on 

the  ....  day  of ,  1 8  .  . ,  by  the  consideration  and 

judgment  of  the  said  [District]  Court,  the  plaintiff 
recovered  in  said  action  a  judgment  against  the  defend- 
ants C.  D.  and  E.  F.,  for  the  sum  of dollars 

damages  and  costs. 


FOR    QUIETING    TITLE.  343 

II.  That  on  the  ....  day  of ,  18  .  . ,  a  writ 

of  execution  was  isused  on  said  judgment  in  due  form 
of  law,  directed  and  delivered  to  G.  H.,  the  then  sheriff 
of ,  to  be  executed. 

III.  That   by   virtue    of  such   execution,    the   said 
Sheriff  did  levy  on  the  lands  and  real  estate  hereinafter 
described  as  the  lands  and  property  of  the  said  defend- 
ant C.  D.,  and  after  giving  and  publishing  the  notice, 
and  doing  all  things  required  by  law,  did  on  the  .... 

day  of ,  1 8 .  . ,  legally  sell  the  said  lands  and 

premises,  and  all  the  right,  title  and  interest  which  the 
said  defendant  C.  D.  had  therein,  on  the   ....  day  of 

,  1 8 .  . ,  and  the  above  named  plaintiff  being  the 

highest  bidder  at  such  sale  became  the  legal  purchaser 

thereof. 

i 

IV.  That  the  said  G.  H.,  as  Sheriff  as  aforesaid, 
duly  executed  and  delivered  to  the  plaintiff  a  certificate 
of  such  sale,  as  required  by  law,  and  after  the  time  for 
redemption  had  expired,  and  neither  the  said  C.  D.  nor 
any  other  person  having  redeemed  the  premises  from 

such  sale,  to  wit :  on  the  ....  day  of ,  1 8 .  . , 

the  said   G.  H.,  as  Sheriff  as  aforesaid,    made,    exe- 
cuted, and  delivered  to  this  plaintiff  a  deed  of  convey- 
ance of  said  premises  as  required  by  law. 

V.  That  the  following  is  a  description  of  the  said  lands 
and  premises:   \Jiere  describe  ii\,  together  with  all  and 
singular  the  tenements,  hereditaments  and  appurtenances 
thereunto  belonging,  or  in  any  wise  appertaining. 

VI.  And  the  plaintiff  further  says  that  at  the  time  of 
the  rendering  of  the  above-named  judgment,  and  for 
several  years  prior  thereto,  and  at  the  time  of  said  sale, 


344  FORMS    OF    COMPLAINTS. 

the  said  defendant  C.D.  had  been  and  was  the  real  owner 
of  the  said  lands  and  premises. 

VII.  That  on  the  ....  day  of ,  18 . . ,  and 

after  the  commencement  of  and  pending  the  suit  of  the 
plaintiff  against  said  C.D.  and  E.F.  hereinabove  referred 
to,  the  said  C.D.  was  largely  indebted,  and  amongst 
other  persons  was  indebted  to  the  firm  of  I.K.  and  Com- 
pany, and  also  to  the  plaintiff,  on  the  demands  for  which 
the  above  judgment  was  rendered. 

VIII.  That,  as  the  plaintiff  is  informed  and  believes, 
and  so  charges  the  truth  to  be,  with  a  view  to  conceal 
his  said  property  from  plaintiff  and  other  creditors,  and 
to  hinder  and  delay  and  defraud  them  in  the  collection 
of  their  debts  and  demands,  he,  the  said  defendant  C.D. 

^nade  and  executed  to  one  L.M.  a  conveyance  of  the 
said  above  described  premises,  so  purchased  by  said 
plaintiff  as  above  set  forth. 

IX.  And  the  plaintiff  is  informed  and  believes,  and 
therefore  avers  that  said  conveyance  was  without  any 
consideration  moving  from  said  L.  M.  or  any  other  per- 
son, but  was  wholly  voluntary,  sham,  and  fictitious;  and 
that  said  L.M.  held  said  premises  under  said  convey- 
ance, in  secret  trust  for  the  said  C.D.,  until  the  convey- 
ance by  him  as  next  hereinafter  stated. 

X.  That  on  the    ....   day  of ,   1 8 .  . ,  the 

said  L.M.,  at  the  request,  as  plaintiff  believes  and  charges, 
of  the  said  C.D.,  and  without  any  consideration  moving 
therefore,  made   and  executed   a  conveyance    of  said 
premises  to  one  O.D.,  who  is  the  father  of  the  said  C.D.; 
and  that,  as  plaintiff  believes  and  charges,  the  said  O.D. 
paid  no  valuable  consideration,  but  took  and  held  the 
same  in  secret  trust  for  the  said  C.D.,  and  with  the  intent 


FOR    QUIETING    TITLE.  345 

to  aid  and  abet  the  said  C.D.  in  hindering,  delaying  and 
defrauding  his  creditors,  and  especially  this  plaintiff. 

XL     And  the  plaintiff  further  avers  that  by  virtue 
of  the  sale  and  purchase  by  him  as  above  stated,  and  the 

conveyance  from  said as  Sheriff,  he  became,  and 

was,  and  is  the  owner  of  said  premises;  that  the  con- 
veyance from  said  C.D.  to  said  L.M.,  and  from  said 
L.M.  to  said  O.D.,  were  and  are  fraudulent  and  void, 
and  operate  only  as  a  cloud  on  the  title  of  said 
plaintiff. 

Wherefore  the  plaintiff  prays  that  it  may  be  decreed: 

1.  That  said  defendant  C.D.  was  the  real  owner  of 
said  premises  at  the  time  of  issuing  said  execution  and 
sale,  and  the  conveyance  by  the  said  Sheriff  to  said 
plaintiff,  and  that  said  defendant  O.D.,   at  the   same 
period,  held  the  same  in  secret  and  fraudulent  trust  for 
said  C.D.  as  aforesaid;  and  further,  that  the  plaintiff  be 
adjudged  and  decreed  to  be  the  legal  owner   of  said 
premises,  and  that  the  said  conveyance  from  said  C.D. 
to  said  L.M.,  and  from  said  L.M.  to  said  O.D.,  may  be 
decreed  to  be  fraudulent  and  void,  and  of  no  force  or 
effect. 

2.  That  the  said  defendants  C.  D.  and  O.  D.   may 
be  decreed  to  make,  execute,  and  deliver  to  this  plaintiff 
a  deed  of  conveyance  of  all  the  right,  title,  and  interest 
in  said  premises;   or,  that  some  person  may  be  appointed 
by  this  honorable  Court  to  do  it  for  them,  and  that  the 
plaintiff  may  have  such  further  or  other  relief  as  the 
nature  of  the  case  may  require;  and  in  the  meantime  that 
the  said  defendant  may  be  enjoined  from  selling,  convey- 
ing, transferring,  mortgaging,  encumbering,  or  otherwise 
interfering  or  meddling  with  said  premises,  and  for  costs. 


346  FORMS   OF   COMPLAINTS. 

No.  474. 

To  Remove  a  Mortgage  which  is  a  Cloud  upon  Title. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiff  is  the  owner  in  fee  of  the  follow- 
ing described  premises,  situated  in  [description]. 

II.  \_Allege  the  making  of  the  'mortgage,  or  other 
apparent  lien,  stating  facts  which  show  that  on  its  face 
it  appears  valid,  and  that  in  fact  it  is  void. 

III.  That  said  mortgage  was,   on  the  ....  day  of 

,  18.  .,  duly  recorded   in   the    Office  of  the 

Register  of  said  County,  in  Book  ....  of  Mortgages, 

p ,  and  still  remains  unsatisfied   of  record,  and  a 

cloud  upon  the  plaintiff's  title. 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  the  defendant  give  up  said  mortgage  to  be 
cancelled. 

2.  That  the  same  be  satisfied  of  record. 

3.  And  for  the  costs  of  this  action. 


35.  Mortgage  on  Homestead. — Where  A.,  a  married  man, 
mortgaged  the  homestead  to  B.,  without  concurrence  of  his  wife,  and 
A.  and  his  wife  subsequently  mortgaged  to  C.,  and  B.  and  C.  both 
foreclosed  their  mortgages,  neither  making  the  other  a  party;  where- 
upon C.  filed  a  bill  against  B.  to  set  aside  the  decree  of  foreclosure  of 
the  latter,  alleging  that  the  homestead  premises  did  not  exceed  in  value 
$5,000:  Held,  that  C.  could  urge  the  same  objections  to  the  mortgage 
of  B.  that  A.  and  his  wife  could  that  B.'s  decree  was  a  cloud  upon  the 
title,  and  impaired  the  security;  and  that  C.  was  entitled  to  have  it  set 
aside.  Dorsey  v.  McFarland,  7  Cal.  342. 


FOR    QUIETING   TITLE.  347 

36.  Parties. — The  plaintiff  filed  her  bill  to  remove  a  cloud  upon 
her  title  to  land,  created  by  her  husband's  deed  to  one  of  the  defend- 
ants, and  she  joined  in  the  bill  three  other  defendants,  one  of  whom 
had  bought  a  portion  of  the  land  from  the  plaintiff  and  her  husband, 
and  two  of  whom  held  a  mortgage  upon  the  property  executed  by 
them :  Held,  that  the  latter  were  unneccessary  parties,  as  the  grantee  in 
the  deed,  and  those  claiming  under  him,  were  the  only  parties  necessary 
to  a  complete  adjudication  of  the  case.     Peralta  v.  Simon,  5  Cal.  313. 

37.  Sheriff's  Title.— The  plaintiff  purchased  at  sheriff's  sale, 
under  foreclosure  of  mortgage,  property  for  twenty  dollars,  which  was 
shown  to  be  worth  three  thousand,  with  a  rental  of  fifty  dollars  per 
month.   The  defendant  purchased  the  property  under  another  mortgage 
sale  for  two  thousand  dollars,  and  the  plaintiff  being  in  possession  filed 
his  bill  to  cancel  defendant's  deed,  and  remove  the  cloud  from  his 
title.   To  entitle  a  party  to  this  relief,  it  must  appear  that  the  contract  was 
fair,  just,  and  reasonable,  and  founded  upon  an  adequate  consideration, 
as  a  court  of  equity  will  not  use  its  powers  to  complete  a  speculation 
which  is  already  too  fortunate  to  obtain  its  favorable  regard.     Dunlap 
v.  Kelsey,  5  Cal.  181. 


CHAPTER    V. 

COMPLAINTS     FOR    WASTE. 

No.  475. 

i.    By    Lessor — Waste   by  Lessee. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on  the  ....  day  of ,  1 8 . . ,  the  defend- 
ant hired  from  him  the  house  No , Street, 

San  Francisco,  for  the  term  of months. 

II.  That   the   defendant   occupied  the   same   under 
such  hiring. 


348  FORMS    OF    COMPLAINTS. 

III.    That  during  the  period  of  such  occupation,  the 
defendant  greatly  injured  the  premises,  to  the  damage 

of  the  plaintiff dollars,  against   the   form   of 

the  statute. 

Wherefore  plaintiff  demands  judgment  for 

dollars  damages. 


1.  Common  Law  Doctrine. — Although  the  common  law  doc- 
trine of  waste  is  not  strictly  applicable  in  this  country,  yet  such  cutting 
of  trees  or  timber  as  will  work  a  permanent  injury  to  the  freehold  or 
inheritance,  in  the  absence  of  any  specific  leave  or  license  to  cut  such 
trees  or  timber,  is  waste,  for  which  an  action  will  lie  in  equity,  for  the 
prevention  of  such  injury  by  injunction  before  it  is  committed,  or  at 
law,  for  the  recovery  of  damages  by  the  remainderman,  after  the  injury 
is  done.     McCay  v.  Wait,  51  Barb.  225. 

2.  Growing    Timber,    -when   Cut. — Whilst  the  timber  is 
growing,  it  is  part  of  the  realty,  and  its  destruction  constitutes  that  kind 
of  waste,  the  commission  of  which  a  court  of  equity  will,  upon  petition, 
restrain.     When  once  cut,  the  character  of  the  property  is  changed;  it 
has  ceased  to  be  a  part  of  the  realty,  and  has  become  personalty,  but 
its  title  is  not  changed.     It  belongs  to  the  owner  of  the  land  as  much 
afterwards  as  previously,  and  he  may  pursue  it  into  whosesoever  hands  it 
goes,  and  is  entitled  to  all  the  remedies  for  its  recovery  which  the  law 
affords  for  the  recovery  of  any  other  personal  property  wrongfully  taken 
or  detained  from  its  owner.     And  if  he  cannot  find  the  property,  to 
enforce  its  specific  return,  he  may  waive  the  wrong  committed  in  its 
removal  and  use,  and  sue  for  the  value,  as  upon  an  implied  contract  of 
sale.     Halleck  v.  Mixer,  16  Cal.  574. 

3.  Injunction. — Cutting,  destroying,  or  removing  growing  timber, 
is  sufficient  ground  for  an  injunction,  without  any  allegation  of  insol- 
vency.    (Natoma  Water  and  Mining  Co.  v.  Clarkin,  14   Cal.   544-) 
For   forms   of  complaints   for   an   injunction   restraining   waste,    see 
"  Complaints,"  Subdivision  Eighth,  Chapter  v.    For  proceedings  therein, 
see  Vol.  iii.,  "  Injunction."      A  purchaser  of  standing  timber  cannot 
obtain  an  injunction  to  stay  waste  committed  by  the  cutting  of  the 
timber:    First,  Because  as  to  him  the  cutting  of  the  timber  is  no  waste, 


FOR    WASTE.  349 

neither  the  remainder  in  fee  simple  nor  in  fee  tail  being  vested  in 
him ;  Second,  Because  being  a  mere  purchaser  of  the  timber,  he  has 
adequate  relief  at  law,  if  it  does  not  appear  that  the  defendants  are 
irresponsible. 

4.  Mining  Claims. — The  working  of  a  mine  is  waste.     (United 
States  v.  Parrott,  i  Me  All.  271.)     The  removal  of  gold  from  a  mine  is 
emphatically  taking  away  the  entire  substance  of  the  estate,  and  comes 
within  that  class  of  trespass  for  which  injunctions  are  now  universally 
granted.     (Merced  Min.  Co.  v.  Fremont,  7  Cal.  317.)     When  the  in- 
jury threatens  to  be  continuous  and  irreparable  (Id.),  consult  (Hill  v. 
Taylor,  22  Cal.  191.)     It  is  no  objection  to  an  injunction  in  such  case 
that  the  party  may  possibly  recover  what  others  may  deem  an  equiva- 
lent in  money.     (Hicks  v.  Michael,  15  Cal.  107.)     Where  a 'ditch  has 
been  excavated  from  the  bed  of  a  stream  and  its  water  has  been  diverted 
through  the  same  for  mining  purposes,  a  miner  has  no  right  to  work  a 
claim  located  above  its  head,  after  the  ditch  is  dug,  so  as  to  mingle  mud 
and  sediment  with  the  water,  and  injure  the  ditch,  or  fill  it  up,  and  lessen 
its  capacity.     Hill  v.  Smith,  27  Cal.  476. 

5.  Parties. — The  action  for  waste  may  be  maintained  against  a 
guardian,  tenant  for  life  or  years,  joint  tenant,  or  tenant  in  common  of 
real  property.     (Cal.  Pr.  Act.  §  250.)     It  may  be  maintained  by  any 
person  aggrieved.      Cal.  Pr.  Act.  §  250. 

6.  Removal  of  Building. — An  injunction  will  not  be  granted  at 
the  suit  of  the  landholder,  against  the  tenant  or  his  assigns,  to  restrain 
the  commission  of  waste  by  the  removal  from  the  demised  premises  of 
a  building  erected  by  the  tenant,  if  it  appears  that  the  landholder  is  not 
entitled  to  the  reversion.     Perrine  v.  Marsden,  34  Cal.  14. 

7.  Repairs  to  Estate. — It  is  not  waste  in  a  tenant  for  life  to  cut 
down  timber  trees  for  the  purpose  of  making  necessary  repairs  on  the 
estate,  and  to  sell  them  and  purchase  boards  with  the  proceeds,  pro- 
vided it  is  the  most  economical  mode.    Loomis  v.  Wilber,  5  Mass.  13. 

8.  Title. — As  the  defendant  is  estopped  from  denying  the  plaintiffs 
title,  it  need  not  be  alleged.      (Carris  v.  Ingalls,   12    Wend.  70.)     Of 
course,  if  the  action  is  brought  against  a  tenant  whose  possession  was 
not  derived  from  the  plaintiff,  the  latter  must  show  his  title. 

9.  Triple    Damages. — Judgment  may  be   for  triple   damages. 


35O  ^      FORMS    OF    COMPLAINTS. 

(CaL  Pr.  Act,  §  250.)  At  common  law  there  is  no  forfeiture  of  an 
estate  for  years  for  the  commission  of  waste,  but  it  was  made  so  by  the 
statute  of  6  Edward  i,  and  it  was  expressly  confined  to  the  place 
wherein  the  waste  was  committed;  but  the  statute  of  California  confines 
the  remedy  to  triple  damages.  (Chipman  v.  Emeric,  3  Cal.  283.)  If 
the  Court  refuse  to  triple  the  damages,  the  remedy  is  on  appeal,  and  not 
by  mandamus.  (Early  v.  Mannix,  15  Cal.  149.)  When  triple  damages 
are  given  by  statute-,  it  must  be  expressly  inserted,  and  conclude,  to  the 
damage  of  the  plaintiff,  against  the  statute.  (Chipman  v.  Emeric,  5  Cal. 
239.)  Held,  not  10  apply  to  justices'  courts.  O'Callaghan  v.  Booth,  6 
Id.  66. 

10.  Waste  Defined. — "Waste,"  says  Mr.  Justice  Blackstone,  "is 
a  spoil  or  destruction  in  houses,  gardens,  trees,  or  other  corporeal  here- 
ditaments, to  the  disherison  of  him  that  hath  the  remainder  or  reversion 
in  fee  simple  or  fee  tail."     (Sedg.  on  Dam.  146.)     See,  also,  the  com- 
mon law  with  regard  to  waste,  expounded  by  Lord  Chief  Justice  Eyre, 
in  Jefferson  v.  Bishops  of  Dunham,  i  Bor.  &  Pull.  120;  and  Story's 
Eq.  Jur.  §  909. 

11.  Waste,  -what  Constitutes. — It  is  waste  to  cut  timber  trees 
and  sell  them  in  exchange  for  firewood,  but  not  to  use  for  posts  on  the 
premises.      (17  Pick.  252;    Padelford  v.  Padelford,  7  Pick.  152;  (see, 
also,  Clark  v.  Holden,  7  Gray,  8.)     In  this  country,  no  act  of  a  tenant 
constitutes  waste,  unless  it  is  or  may  be  prejudicial  to  the  inheritance, 
or  to  those  who  are  entitled  to  the  reversion  or  remainder.    Pynchon  v. 
Stearns,  n  Met.  304. 

12.  When   Action    Lies. — The  action  for  waste  lies  even  after 
assignment  of  the  reversion.     (Robinson  v.  Weeeler,   25   N.Y.  252.) 
An  action  of  waste  is  not  maintainable  against  a  tenant  by  elegit  on  the 
principles  of  the  common  law.     i  Co.  Lift.  54;  3  Cooke's  R.,  part  6, 
37;  Scott  v.  Lenox,  2  Brock.  Marsh.  57. 

13.  When  Injunction  -will  not  be  Dissolved. — An  injunc- 
tion will  not  be  dissolved  restraining  defendants  from  felling  trees, 
where  the  question  of  boundary  is  in  dispute;  especially  where  the 
defendant's  bond   will   fully  protect  him  for  any  delay,  if  it  should 
turn  out  that  they  have  any  right.     Buckalew  v.  Estell,  5  Cal.  108. 

14.  Wrongful. — Under  an  averment  of  wrongful  waste,  a  recovery 
maybe  had  for  negligent  waste.     Robinson  v.  Wheeler,  25  N.Y.  252. 


FOR    WASTE.  351 

JVo.  476. 

ii.     By  Purchaser  at  Sheriff's  Sale — For  Waste,  Intermediate  the  Sale 

and  Delivery  of  Possession. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on  the  ....  day  of ,  1 8 .  . ,  one  A.  B. 

was  the  owner  in  fee  of  the  following  described  premises 
[description  of  premises, .] 

II.  That  the  said  premises  were  at  the  time  subject 
to  the  lien  of  a  judgment  recovered  by  one  C.  D.  against 

E.  F.,  in  an  action  in  the Court  of  the 

Judicial  District, County,  in  this  State,  which 

judgment  was  docketed  in  said   County  [or  state  the 
county\ ,  and  that  the  Sheriff  of  said  County,  by  virtue 
of  an  execution  issued  thereon,  sold  the  same. 

III.  That  at  such  sale  the  plaintiff  became  the  pur- 
chaser, and  the  Sheriff  executed  and  delivered  to  him 

a  certificate  of  the  sale,  and  on  the  ....  day  of , 

18.  .,  and  before  this  action,  executed  and  delivered  to 
the  plaintiff  a  deed  of  the  premises  pursuant  to  the  sale, 
and  the  plaintiff  paid  the  purchase-money  therefor. 

IV.  That  intermediate  the  sale  and  delivery  of  the 
deed,  the  defendant  being  in  possession  [allege  act  of 
waste  and  damage,  against  form  of  the  statiite~\. 

{Demand  of  Judgment^ 


Form. — For   form    in   such   action,  see    Thomas    v.   Crofut,    14 

N.F.  474. 

15.     Sheriff's  Deed. — The  deed  and  payment  should  be  alleged. 
Farmers'  Bank  of  Saratoga  v.  Merchant,  13  Hoiv.  Pr.  10. 


352  FORMS    OF     COMPLAINTS. 

No.  477. 

Hi.     The  Same — By  Redemptioner . 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 
I.  and  II.    [As  in  preceding  form. ~\ 

III.  That  at  such  sale  the  defendant  became  the  pur- 
chaser, and  the  sheriff  executed  and  delivered  to  him  a 
certificate  of  the  sale. 

IV.  That  afterwards,  and  before  the  expiration  of  six 
months,  the  plaintiff  redeemed  the  same  from  said  sale, 
by  paying  the  necessary  amount  therefor,  and  on  the 

....  day  of ,  1 8 .  . ,  and  before  this  action,  the 

Sheriff  executed  and  delivered  to  the  plaintiff  a  deed  of 
the  premises  pursuant  to  the  sale  and  redemption. 

V.  [Allege  acts  of  waste    intermediate    sale   and 
redemption,  against  the  form  of  the  statute^ 

[Demand  of  Judgment^ 

JV  0.478. 

iv.   By  Reversioner — For  Forfeiture  and  Eviction  on  Account  of  Waste. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  his  death,  one  A.  B.  was  seized- 
in  fee  of  [describe  the  premises^. 

II.  That  in  his  lifetime,  the  said  A.  B.  made  and  pub- 
lished his  last  will  and  testament,  whereby  he  devised 
the  said  land,  for  the  term  of ,  to  the  plaintiff. 


FOR.  WASTE.  353 

III.  That  on  the    day  of ,  18 .  . ,  at 

,  the  said  A.  B.  died. 

IV.  That  the  defendant  entered  into  possession  of 
the  same  under  the  said  will. 

V.  That  on  the  ....  day  of ,  1 8 .  . ,  the  de- 
fendant committed  great  waste  on  the  said  land  [state 
acts  of  waste~\. 

VI.  That  the  injury  thereby  done  to  the  said  prop- 
erty is  more  than  equal  to  the  value  of  the  defendant's 
unexpired  term. 

Wherefore  the  plaintiff  demands  judgment: 

1 .  That  the  estate  of  the  defendant  in  the  said  prop- 
erty be  forfeited. 

2.  That  he  be  evicted  therefrom. 

3.  For dollars  damage. 


NOTE. — This  form  and  the  succeeding  one  are  applicable  to  such 
States  as  admit  by  statute  forfeiture  and  eviction  on  account  of  waste. 
Under  the  Statute  of  California,  the  remedy  is  confined  to  recovery  of 
triple  damages.  See  Ante,  Note  9. 


JVo.  479. 

v.    The  Same — By  Devisee. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  his  death,  one  A.  B.  was  seized 
in  fee  of  that  certain  piece  or  parcel  of  land,  situated  in 
the  City  and  County  of  San  Francisco,  and  State  of  Cali- 
fornia [describe  premises]. 

23 


354  FORMS    OF     COMPLAINTS. 

II.  That  on  the  ....  day  of ,  18.  .,at , 

the  said  A.  B.  died;  leaving  a  last  will  and  testament, 
whereby  he  devised  the  said  land  to  the  defendant,  for 

the   term   of years,  and   afterwards  to   the 

plaintiff. 

III.  That  the  defendant  entered  into  possession  of 
the  said  premises  under  the  said  will. 

[Allege  acts  of  waste  as  in  previous  form."] 
[Demand  of  Judgment.] 


COMPLAINTS — SUBDIVISION  EIGHTH. 

For  Specific  Relief. 


CHAPTER  I. 

CREDITORS'  SUITS. 
No.  480. 

i.    Commencement  of  Complaint — One  Suing  for  All. 
[TITLE.] 

The  plaintiff  complains,  on  behalf  of  himself  and  of  all 
others,  the  creditors  of  A.  B.,  who  shall  in  due  time 
come  in,  and  seek  relief  by  and  contribute  to  the  ex- 
penses of  this  action,  and  alleges: 

I.    That  the  said  creditors  of  A.  B.  are  very  numerous, 

to  wit:  more  than in  number,  and  that  some 

of  them  are  unknown  to  the  plaintiff,  and  cannot  with 
diligence  be  ascertained  by  him;  and  that  it  is  imprac- 
ticable to  bring  them  all  before  the  Court  in  this  action ; 
wherefore  he  sues  for  the  benefit  of  all. 


L  Association. — Where  a  member  of  an  incorporated  associa- 
tion sues  the  president  or  other  chief  officers  for  an  accounting  con- 
cerning the  property  of  the  association,  or  for  a  fraudulent  breach  of 
trust  in  respect  thereto,  all  the  members  of  the  association  must  be 
made  parties,  or  the  plaintiff  must  sue  for  the  benefit  of  all  others 


FORMS    OF     COMPLAINTS. 

standing  in  the  same  situation  as  himself.  6  Paige,  60;  Warth  v, 
Radde,  18  Abb.  Pr.  396;  S.C.,  28  How.  Pr.  230;  Habicht  v.  Pember- 
ton,  4  Sandf.  657. 

2.  For  the  Benefit  of  All.— The  language  of  the  Code,    "for 
the  benefit  of  all,"  is  sufficiently  stated  in  the  above  allegation:  "All" 
"who  come  in  and  contribute  to  the  expenses."     (Dennis  v.  Kennedy, 
19  Barb.   517.)     The  Code  (Cat.  Pr.  Act,  §  14)  provides,  that  "those 
who  are  united  in  interest  shall  be  joined  as  plaintiffs;  but  it  also,  in 
the  same  section,  provides  that,  "  when  the  question  is  one  of  common 
or  general  interest  one  or  more  may  sue  for  all,"  thus  creating  a  distinc- 
tion in  terms  "united  in  interest,"  and  "common  interest."     (See  Cal. 
Pr.  Act,  §  14.)     Thus,  in  the  case  of  legatees  having  a  common  interest, 
one  may  sue,  and  all  may  avail  themselves  of  the  decree.     (Kenzie  v. 
Lamoreaux,  n  Barb.  516;  see,  also,  Brooks  v.  Peck,  38  Barb.  519.) 
Otherwise,  however,  where  the  interests  of  several  parties  are  united,  in 
which  case  all  must  be  joined.     Cal.  Pr.  Act,  §  14. 

3.  One  Suing  for  All. — When  the  question  is  one  of  a  common 
or  general  interest,  and  it  is  impracticable  to  bring  them  all  before  the 
Court,  one  or  more  may  sue  or  defend  for  the  benefit  of  all.     (Cal.  Pr. 
Act,  §    14;    N.Y.  Code,  §119;    Laws  of  Idaho,  §    14;    Arizona,  §    14; 
Wash.  Terr.  §  10;    Smith  v.  Lockwood,  i  Code  R.  (N.S.)  319;    S.C., 
10  N.Y.  Leg.  Obs.  12;    Wood  v\  Draper,  24  Barb.  187;   S.C.,  4  Abb. 
Pr.  322.)     The  provisions  of  this  section  are  intended  to  apply  ex- 
clusively to  suits  in  equity.     (Andrews  v.  Mok.  Hill  Co.,  7  Cal.  336.) 
The  rule  requiring  all  persons  materially  interested  to  be  made  parties 
is  dispensed  with  when  it  is  impracticable  or  inconvenient,  as  in  cases  of 
joint  associations  composed  of  numerous  individuals.    In  such  case  the 
statute  authorizes  one  to  sue  for  all.     (Cal.  Pr.  Act,  §  14;  Von  Schmidt 
v.  Huntingdon,  i  Cal.  55;  Gorman  v.  Russell,  14  Cal.  531.)     In  such 
an  action,  when  an  injunction  is  sought,  the  plaintiff  must  allege  in  his 
complaint  that  he  sues  as  well  on  behalf  of  himself,  as  on  behalf  of  all 
others  equally  interested  with  him.      (Smith  v.  Lockwood,  i  Code  R. 
319;    10  N.Y.  Leg.  Obs.  12;   Wood  v.  Draper,  24  Barb.  187;   4  Abb. 
Pr.  322.)     Or,  for  the  benefit  of  those  interested  who  may  "come  in 
and  contribute  to  the  expenses,"  or,  "for  the  benefit  of  the  whole."   Id.; 
Dennis  v.  Kennedy,  19  Barb.  517. 

4.  Parties. — In  New  York,  no  creditor  can  individually  maintain 
an  action  against  an  individual  stockholder  for  the  share  illegally  dis- 


CREDITORS     SUITS.  357 

tributed  to  him.  The  liability  is  to  the  creditors  generally,  and  the 
action  should  be  commenced  by  some  party  representing  all  the 
creditors.  Osgood  v.  Laytin,  5  Abb.  Pr.  (N.S.)  i. 


No.  481. 

ii.    The  Same —  Where  a  Particular  Class  of  Creditors  only  are 
Concerned. 

[TITLE.] 

The  plaintiff  complains,  on  behalf  of  himself  and  all 
others,  the  creditors  of  A.  B.,  who  are  parties  to  the 
deed  of  trust  hereafter  mentioned  [or  whose  executions 
have  been  returned  unsatisfied],  and  who  shall  come  in 
and  seek  relief  by  and  contribute  to  the  expenses  of 
this  action,  and  alleges: 

I.  [  The  same  as  in  preceding  form,  omitting  "where- 
fore he  sues  for  the  benefit  of  all."~\ 

II.  That  the  question  which  is  the  subject  of  this 
action   is  one  of  a  common  and  general  interest  of  all 
the  said  creditors  under  the  said  trust  deed;  wherefore 
the  plaintiff  sues  for  the  benefit  of  all. 

III.  \_Allege  cause  of  action.~\ 

[Demand  of  Judgment.} 


6.  Parties  to  the  Deed  of  Trust. — It  is  only  the  particular 
class  who  might  have  brought  the  suit  who  can  come  in.  (Parmalee 
v.  Egan,  7  Paige,  610;  Cooke  v.  Smith,  3  Sandf.  Ch.  333.)  Where  a 
lien  creditor  seeks  relief  in  equity,  in  behalf  of  himself  and  other  cred- 
itors of  the  same  class,  the  decree  should  provide  for  the  relief  of  all. 
(Trustees  of  Wabash  and  Erie  Canal  v.  Beers,  2  Black.  U.S.  448.)  All 
parties  in  the  same  manner  affected,  though  in  different  degrees,  may 
be  joined.  Vermeule  v.  Beck,  15  How.  Pr.  333;  Van  Rensselaer  v. 
Layman,  10  How.  Pr.  505;  Wandle  v.  Turney,  5  Duer,  661. 


35 8  FORMS    OF     COMPLAINTS. 


No.  482. 

iii.    Creditor's  Action  on  a  Judgment  of  a  Court  of  Record,  to  Set 
Aside  Fraudulent  Assignment. 

[TITLE.] 

The  plaintiff  complains,  and  alleges  [or  commencement 
as  in  preceding  forni\\  • 

I.  That  on  the day  of ,   1 8 .  . ,  at 

,   judgment   was    rendered   in   the   

Court  in  his  favor,    against  the  defendants  C.  D.  and 
E.  F.,  for dollars. 

II.  That  on   the  ....  day  of ,   18 .  . ,  an 

execution  was  issued  upon  the  said  judgment,  against 
the  property  of  the  said  C.  D.  and  E.  F.,  addressed  to 

the  Sheriff  of  the  County  of ,  in  which  they 

then  resided. 

III.  That  the  said  execution  has  been  returned  by  the 
said  sheriff,  wholly  unsatisfied. 

IV.  That  after  the  contracting  of  the  debt  on  which 
the  aforesaid  judgment  was  recovered,  the  said  C.  D. 
and  E.  F.  assigned  all  their  property  to  one  G.  H.,  in 
trust  for  the  payment  of  their  debts  [or  made  an  assign- 
ment, of  which  a  copy  is  hereto  annexed]. 

V.  That  the  said  G.  H.  accepted  the  said  trust,  and 
has  collected  a  large  sum  of  money  and  other  property 
from  the  assets  of  his  assignors,  amounting  in  all  to  the 
value  of  over dollars. 

VI.  That  the  said  assignment  was  made  with  intent 
to  delay  and  defraud  the  creditors  of  the  said  C.  D.  and 
E.  F. 


CREDITORS     SUITS.  359 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  the  said  assignment  is  fraudulent  and  void 
as  against  the  plaintiff. 

2.  That  the  said  G.  H.  account,  under  the  direction 
of  the  Court,  for  all  the  property  received  by  him  as 
aforesaid. 

3.  That  the  defendants  be  restrained  by  injunction 
from  interfering  with  the  said  property  or  its  proceeds, 
except  under  the  direction  of  the  Court. 

4.  That  the  plaintiff's  judgment  be  satisfied  out  of  the 
same. 


7.  Acceptance   of    Trust. — This  averment  is  not  absolutely 
essential,  as  the  action  can  be  maintained,  and  the  burden  of  accepting 
or  disclaiming  the  trust  be  thrown  upon  the  assignee.    (Gasper  v.  Ben- 
nett, 12  How.  Pr.  307.)     A  complaint  joining  with  the  assignee  the 
administrator  of  a  deceased  assignor  should  allege  that  the  administra- 
tor claimed    that    the    transfer    was    valid.       Bate    v.   Graham,    n 
N.F.  237. 

8.  Allegation    where  Debtor  in  the  Judgment   is  not 
Defendant  because  of  Insolvency  and  Absence. — That  said 
[judgment-debtor]  is  wholly  insolvent  and  destitute  of  property  [or  is 

not,  and  has  not  been  for  the  space  of ,  within  this  State,  but 

resides  at  San  Salvador,  in  the  State  of  Honduras,  and  has  no  property 
within  this  State].    This  is  a  necessary  and  sufficient  excuse  for  the  non- 
joinder.    Van  Cleef  v.  Sickles,  5  Paige,  505. 

9.  Allegation  -where   Debtor  in  the  Judgment  is  not 
Defendant  because  merely  a  Surety. — That  the  said  judgment 
was  recovered  in  an  action  [describe  /'/],  brought  to  foreclose  a  mortgage 
made  by  the  defendant  to  said  [surety},  with  a  note  collateral  thereto, 
and  that  said  note  and  mortgage  was  assigned  to  the  plaintiff  by  the 
said  [surety],  who  thereupon  guarantied  the  payment  thereof;  but  the 
same  not  being  paid,  and  the  mortgaged  premises  being  sold  upon  fore- 
closure in  said  action  for  less  than  the  sum  due,  said  judgment  was 
recovered  for  the  deficiency,  as  to  which  the  said  [surety]  was  merely  a 


360  FORMS    OF    COMPLAINTS. 

surety,  and  not  liable  as  a  principal  debtor, -and  which  it  was,  by  a  pro- 
vision in  said  judgment,  directed  should  be  levied  of  the  property  of 
the  defendant  (principal  debtor),  if  it  could  be  so  collected;  and  if  it 
could  not,  then  to  be  levied  of  the  property  of  said  [surety]. 

10.  Allegations  Essential. — The  complaint  must  contain  an 
allegation  of  the  issue  of  an  execution.      (McCullough  v.  Colby,   5 
Bosw.  477.)    That  an  execution  was  duly  issued  was  held  sufficient, 
French  v.  Willett,  10  Abb.  Pr.  102. 

11.  Allegation  of  Bad  Faith. — In  a  complaint  in  a  creditor's 
action,  seeking  to  set  aside  a  conveyance  as  fraudulent,  an  allegation  that 
the  grantee,  the  debtor's  wife,  gave  no  consideration  for  the  premises 
conveyed  to  her,  and  that  the  whole  consideration  came  from  her  hus- 
band, is  a  sufficient  allegation  of  bad  faith  or  fraudulent  intent  on  her 
part.     Newman  v.  Gordell,  43  Barb.  448. 

12.  Attachment-Creditor. — It  has  been  frequently  held  that  the 
lien  acquired  by  the  levy  of  an  attachment  will  not  alone  authorize  an 
action  to  set  aside  the  assignment  as  fraudulent,  either  before  or  after 
judgment  in  the  attachment  action.     (24  Barb.  105;   n  Abb.  Pr.  220; 
30  Barb.  552;  13  N.Y.  488;  Mechanics'  and  Traders'  Bank  v.  Dakin,  28 
How.  Pr.  502.)     But  the  plaintiff  obtains  such  a  lien  upon  the  property 
attached  as  will  entitle  him  to  the  intervention  of  equity  to  remove  or 
set  aside  fraudulent  obstacles  to  the  enforcement  of  the  lien,  and  for  this 
purpose  may  maintain  an  action  to  reach  the  fund  fraudulently  trans- 
ferred by  the  debtor.     28  N.Y.  45;  Greenleaf  v.  Mumford,  19  Abb.  Pr. 
469;  30  How.  Pr.  30. 

13.  Averment    of  Liability. — A  general  averment  that  the 
defendant  was  primarily  liable  is  not  enough.     Strange  v.  Longley,  3 
Barb.  Ch.  650;  see  Speiglemeyer  v.  Crawford,  6  Paige,  254. 

14.  Creditor's  Suit  Defined. — A  creditor's  suit  is  a  continuation 
of  the  suit  at  law,  as  it  merely  seeks  to  obtain  the  first  of  the  judgment, 
or  to  remove   obstacles  to  the    remedy  at   law.      Hatch  v.  Dorr,  4 
McLean,  112. 

15.  Delay,  Hinder,  and  Defraud. — A  mere  general  allegation 
that  it  was  made  to  delay,  hinder,  and  defraud,  is  not  sufficiently  specific 
where  the  fraud  is  extrinsic  to  the  instrument.    (Kohner  v.  Ashenauer, 
17  Cal.  580;  Kinder  v.  Macy,  7  Cal.  206;  Meeker  v.  Harris,  19  Id. 


CREDITORS'  SUITS.  361 

278;  Harris  v.  Taylor,  15  Id.  348;  Castle  v.  Bader,  23  Id.  77;  Kent  v. 
Snyder,  30  Id.  674;  Morenhout  v.  Brown,  Cal.  Sup.  Ct.,  Jul.  T.,  1863, 
not  reported;  but  see  Mott  v.  Dunn,  10  How.  Pr.  225,)  where  such  an 
allegation  was  held  sufficient  on  demurrer. 

16.  Duly  Given. — These  words  are  not  necessary  in  case  of  a 
judgment  rendered  by  a  court  of  co-ordinate  jurisdiction.     Williams  v. 
Hogeboom,  8  Paige,  469. 

17.  Docketing. — If  the  judgment  is  one  which  will  run  into  any 
county,  docketing  in  another  county  need  not  be  averred  unless  real 
property  of  the  defendant  be  there  situated.     (Millard  v.  Shaw,  4  How. 
Pr.  137.)     The  docketing  of  a  judgment  has  the  effect  of  imparting 
constructive  notice,  even  to  strangers  to  the  judgment,  of  the  lien  of  the 
judgment  on  the  real  estate  of  the  judgment-debtor.     Page  v.  Rogers, 
31  Cal.  293. 

18.  Enforcing  Trust  against  Attorney. — A  court  of  equity 
will  enforce  the  trust  which  the  law  raises,  where  an  attorney  has  in  his 
hands,  with  notice  of  the  right  of  the  judgment-creditors,  the  property 
of  his  clients.     Cowing  v.  Greene,  45  Barb.  585. 

19.  Fictitious    Grantee. — In  a  bill  to  set  aside  certain  con- 
veyances of  real  estate  as  fraudulent  against  creditors,  there  is  no  neces- 
sary inconsistency  in  averring  the  grantee  to  be  a  fictitious  person,  and 
that  the  deed  to  him,  or  in  his  name,  was  made  to  hinder  and  defraud 
creditors.     Purkitt  v'.  Polack,  17  Cal.  327. 

20.  Form  of  Bill. — It  is  immaterial  whether  the  bill  in  form  be 
a  creditor's  bill,  if  it  contains  upon  its  face  matters  for  relief.     (Sedam 
v.  Williams,  4  McLean,  51.)     It  should  be  so  definite  in  description  of 
the  estate,  as  that  any  one  reading  it  can  learn  thereby  what  property  is 
the  subject  of  the  litigation.     Miller  v.  Sherry,  2  Wall.  U.S.  237. 

21.  Fraud,  how  Alleged. — Whether  a  complaint  seeking  to  set 
aside  a  conveyance  on  an  allegation  that  it  was  made  voluntarily  and 
without  a  valuable  consideration,  and  to  hinder,  delay  and  defraud  cred- 
itors, and  particularly  plaintiff,  is  demurrable  because  of  the  generality 
of  this  allegation  of  fraud,  and  what  degree  of  particularity  in  the  state- 
ment of  facts  and  circumstances  is  required  when  a  fraudulent  conveyance 
is  alleged  to  have  been  made,  see  Kohner  v.  Ashenauer,  17  Cal.  578. 

22.  Fraudulent    Conveyance. — If    a   debtor,  anticipating  a 


362  FORMS   OF    COMPLAINTS. 

judgment  against  him,  fraudulently  conveys  his  property  to  another  who 
is  privy  to  the  fraud,  with  intent  to  hinder  and  delay  the  creditor,  who 
thereafter  obtains  judgment,  and  levies  his  execution  on  the  property  in 
the  hands  of  the  fraudulent  grantee,  but  is  afterwards  induced  to  release 
the  levy  on  the  false  and  fraudulent  representations  of  the  grantor,  and  to 
permit  his  judgment  to  become  barred  by  the  Statute  of  Limitations, 
by  reason  of  similar  false  representations  by  the  judgment-debtor,  to  the 
effect  that  he  has  no  property,  and  is  insolvent,  the  creditor  on  aver- 
ring and  proving  the  facts,  and  that  he  discovered  the  fraud  but  recently 
before  the  commencement  of  the  action,  is  entitled  to  relief.  Marshall 
v.  Buchanan,  35  Cal.  264. 

23.  Fraudulent   Judgments. — Where  several  fraudulent  judg- 
ments are  confessed  in  several  courts,  it  would  not  be  necessary  for  a 
creditor  to  bring  a  different  suit  in  each  different  court.     Uhlfelder  v. 
Levy,  9  Cal.  607. 

24.  Husband  and  Wife. — Property  bought  by  the  husband  as 
the  agent  of  his  wife,  with  her  money,  and  afterwards,  in  good  faith,  and 
without  intent  to  defraud  creditors,  sold  by  him  as  her  agent  at  a  profit, 
is  not  subject  to  the  claims  of  the  creditors  of  the  husband  to  the  extent 
of  the  profit,  on  the  ground  that  the  profit  was  the  result  of  his  skill  or 
ability.     (Merchant  v.  Bunnell,  3  Keyes,  539.)     Profits  derived  from  an 
investment  of  the  money  of  the  wife  in  her  name,  are  to  be  regarded 
as  belonging  to  her,  although  they  were  secured  by  the  agency  of  her 
husband  in  the  management  of  the  business.     Merchant  v.  Bunnell,  3 
Keyes,  539. 

25.  Inceptive  Steps. — In  an  action  to  set  aside  as  fraudulent 
a  conveyance  of  land,  so  much  of  the  complaint  as  sets  out  in  detail 
the  inceptive  steps  which  culminated  in  the  alleged  fraudulent  convey- 
ance is  not  irrelevant  or  redundant  matter.      Perkins  v.  Center,  35 
Cal  913. 

26.  Injunction. — As  to  when  an  injunction  will  be  granted  to 
attaching  creditors  of  an  insolvent,  see  Heyneman  v.  Dannenberg,  6  Cal. 
376;  consult,  also,  "Injunction"  Vol.  iii.,  as  to  proceedings  thereon. 

27.  Insolvency   of  Debtor. — A  complaint  to  cancel  a  deed 
given  by  the  debtor  to  defraud  a  creditor  before  judgment  was  recovered, 
need  not  aver  that  the  debtor  was  insolvent  when  he  made  the  deed. 
(Hager  v.  Shindler,  29  Cal.  49.)    It  need  not  be  averred  that  the  plaintiff 


CREDITORS'  SUITS.  363 

has  exhausted  his  remedy  at  law  by  issuing  an  execution  and  having  it 
returned  nulla  dona.  (Id.)  In  an  action  by  a  creditor  to  defeat  a  con- 
veyance on  the  ground  of  fraud,  where  there  is  no  allegation  of  insol- 
vency, and  the  charges  of  fraud  are  in  the  most  general  form,  the 
conveyance,  however  fraudulent  as  to  creditors,  being  valid  as  between 
the  parties,  no  one  can  impeach  it  without  showing  that  he  has  been 
injured  thereby,  and  that  he  is  deprived  of  his  remedy  at  law,  and  that 
the  debtor  has  no  other  property  which  may  be  reached  by  ordinary 
legal  remedies;  that  such  remedies  have  been  exhausted,  or  that  resort 
to  them  would  be  fruitless.  The  specific  facts  constituting  the  fraud 
must  be  averred.  (Harris  v.  Taylor,  1 5  Cal.  348.)  An  allegation  that 
after  the  transfer  the  company  became  insolvent,  and  was  dissolved,  is 
an  indirect  statement  that  it  was  solvent  when  the  transfer  was  made. 
It  would  be  untrue  to  say  that  the  company  became  insolvent  after  the 
assignment,  if  it  were  insolvent  before  and  at  the  time  of  the  assign- 
ment. Nelson  v.  Eaton,  15  How.  Pr.  305. 

28.  Joinder  of  Causes. — A  claim  to  set  aside  two  several  con- 
veyances, fraudulently  made  by  a  judgment-debtor  to  several  grantors, 
may  be  brought  in  one  action.     Jacot  v.  Boyle,  18  How.  Pr.  106. 

29.  Joint  Associations. — It  is  not  necessary  to  make  all  per- 
sons materially  interested  parties  to  the  suit.     When  it  is  impracticable 
or  inconvenient,  one  may  sue  for  all.     (Gorman  v.  Russell,  14  Cal.  531 ; 
affirmed  S.C.,    18  Cal.   688;  Van  Schmidt  v.  Huntington,  i   Cal.  55; 
Kirk  v.  Young,  2  Abb.  Pr.  453.)     The  remedy  against  the  joint  prop- 
erty of  an  association  or  partnership  must  be  exhausted  before  action 
can  be  brought  against  the  individual  members.     Robbins  v.  Wells,  26 
How.  Pr.  15. 

30.  Legal  Remedy  must  be  Exhausted. — The  remedy  at 
law  must  be  exhausted  before  a  court  of  equity  will  grant  relief,  and 
the  creditor  must  have  acquired  an  equitable  lein.     (Nagle  v.  James,  7 
Abb.  Pr.  234;  Dunlevy  v.  Tallmadge,  32  N.Y.  457  and   29  How.  Pr. 
397;  reversing  S.C.,  18  Abb.  Pr.  48.)     In  a  proper  case,  a  creditor's 
bill  can  be  maintained,  where  the  action  is  commenced  after  a  return 
in  good  faith  of  nulla  dona,  though  it  be  made  within  the  sixty  days 
allowed   by  law   as   the   possible   life  of  an   execution.     Renaud   v. 
O'Brien,  35  N.Y.  99. 

31.  Lien. — Where  a  judgment-creditor  obtains  judgment  against 
his   debtors,  and   the   assignee,   declaring   the   assignment   void   and 


364  FORMS    OF    COMPLAINTS. 

appointing  a  receiver,  he  has  an  equitable  lien  upon  the  assets, 
which  dates  from  the  commencement  of  the  action.  (2  Paige,  567; 
Field  v.  Lands,  8  Bosw.  685.)  It  seems  that  the  lien  acquired  by  the 
commencement  of  a  creditor's  suit,  to  reach  equitable  interests  and 
things  in  action,  should  not  be  regarded  as  attaching  by  the  mere  com- 
mencement of  the  suit,  but  only  when  judgment  is  obtained.  (Stewart 
v.  Isidor,  5  Abb.  Pr.  (N.S.}  68.)  If  it  be  otherwise,  a  creditor  claiming 
such  a  lien,  under  proceedings  commenced  before  the  enactment  of 
the  national  bankrupt  law,  must  disclose  such  proceedings  and  lien,  on 
proving  his  claim  in  a  court  of  bankruptcy;  and  if  he  do  not,  he  waives 
thereby  the  lien.  (Stewart  v.  Isidor,  5  Abb.  Pr.  (N.S.)  68.)  The 
right  gained  to  assets  not  leviable  on  execution  is  a  lien,  not  a  mere 
promise  of  payment.  (Ex  parte  Allen,  i  N.Y.  Leg.  Obs.  115;  per 
contra,  Ex  parte  Waddell,  Id.  53.)  If  the  process  issued  in  filing  the 
bill  be  served  before  defendant's  petition  in  bankruptcy  be  filed,  it  is  a 
lien  under  the  bankrupt  law.  (Clark  v.  Rist,  3  McLean,  494.)  Insolv- 
ency of  a  general  and  ordinary  partnership  gives  the  partnership 
creditors  no  lien,  nor  is  the  property  converted  into  a  trust  fund  for  their 
benefit.  (Fassett  v.  Tallmadge,  18  Abb.  Pr.  48.)  A  judgment-creditor, 
having  no  title  or  specific  lien,  may  maintain  an  action  to  obtain  the 
cancellation  of  prior  judgments  which  are  apparent  liens  upon  the  lands 
of  the  debtor,  but  which  he  alleges  to  have  been  paid,  and  this  without 
alleging  collusion  to  keep  judgments  on  foot  to  defraud  creditors. 
Shaw  v.  Dwight,  27  N.Y.  244. 

32.  Mortgage. — Where  in  a  creditor's  bill,  filed  to  compel  the 
application  of  choses  in  action,  equitable  interest,  etc.,  to  the  payment 
of  a  judgment  against  A.,  it  is  charged  that  A.  has  made  a  fraudulent 
conveyance  of  land  to  B.,  who  is  also  a  party,  and  it  is  claimed  that  the 
deed  should  be  set  aside,  and  it  appears  that  the  conveyance  was  made 
in  good  faith,  but  that  B.  gave  to  A.  a  mortgage  thereon  which  is 
unpaid,  it  is  competent  for  the  Court  to  decree  that  B.  pay  such  mort- 
gage to  the  receiver,  to  be  applied  on  the  judgment,  although  such 
mortgage  was  not  named  in  the  bill  or  in  the  prayer  for  relief.  (Dur- 
and  v.  Hankerson,  39  N.Y.  287.)  The  objection  that  such  third 
person  should  have  been  made  a  party,  and  that  B.  may  hereafter  be 
called  upon  to  pay  the  mortgage  to  him,  is  waived  by  B.,  if  he  does 
not  make  it  by  answer  or  demurrer.  (Durand  v.  Hankerson,  39  N.Y. 
287.)  In  such  case,  although  it  appeared  that  a  third  person,  not  a 
party  to  the  suit,  claimed  to  own  the  mortgage,  and  the  evidence 
tended  to  show  an  assignment  by  A.  to  him,  still  it  being  proven  and 


CREDITORS'  SUITS.  .  365 

found  that  such  assignment  was  fraudulent,  it  was  proper  to  require  B. 
to  pay  the  mortgage  to  the  receiver.  Durand  v.  Hankerson,  39 
N.Y.  287. 

33.  Non-Resident  Debtor. — It  is  sufficient  for  the  plaintiff  to  show 
that  all  remedies  at  law  were  exhausted  against  the  debtor  in  the  state  in 
which  he  resided,  and  that  in  this  State  no  legal  remedy  was  available. 
McCartney  v.  Bostwick,  32  N.Y.  53. 

34.  Obstructions  to  Execution. — Such  an  action  lies  to  set 
aside  fraudulent  obstructions  which  lie  in  the  way  of  a  satisfaction  of  the 
judgment.     Or  where  the  execution  will  not  avail  to  cancel  the  judg- 
ment, he  may  bring  an  action  in  aid  of  his  execution  to  reach  property 
upon  which  a  levy  cannot  be  made      See  Hadden  v.  Spader,  20  Johns. 
554,  upon  personal  or  real  property;  Congden  v.  Lee,  3  Edw.  304. 

35.  Parties. — A  creditor's  bill  may  charge  both  the  debtor  and 
his  surety,  or  an  administratrix  of  the  latter,  to  have  combined  with  the 
debtor,  in  committing  a  fraud.     (McLaughlin  v.  Bank  of  Potomac,  7 
Hmv.  U.S.  220.)     Or  it  may  be  filed  against  the  supervisors  of  a  county. 
(Leyell  v.  St.  Clair  Co.,  3  McLean,  580.)     In  a  bill  to  set  aside  a  con- 
veyance as  made  without  consideration,  and  in  fraud  of  creditors,  the 
alleged  fraudulent  grantor  is  a  necessary  defendant  in  the  bill.     Gay-- 
lords  0.  Kelshaw,  i   Wall.  U.S.  Bi. 

36.  Partnership  Debtor. — A  creditor  of  a  partnership  cannot 
have   an   assignment  for   the   benefit  of  creditors   set   aside,   merely 
because  its  provisions  as  to  the  subsequent  payment  of  creditors  of  indi- 
vidual partners  contain  a  direction  calculated  to  hinder  and  delay  them. 
The  one  hindered,  delayed,  or  defrauded,  can  alone  bring  the  action. 
(Morrison   v.  Atwell,  9   Bosw.   503.)      The  judgment-creditor  of  a 
limited  partnership  is  entitled  to  bring  an  action  to  set  aside  any  void 
assignment  which  hinders  the  enforcement  of  the  judgment  and  execu- 
tion against  the  joint  and  separate  property  of  any  of  the  members  of 
the  partnership.     (Fanshaw  v.  Lane,  16  Abb.  Pr.  71.)     It  seems  that 
creditors  of  a  firm  cannot  reach  the  property  of  a  deceased  partner  in 
the  hands  of  his  surviving  partner,  without  having  some  one  before  the 
Court,  entitled  to  represent  the  estate  of  the  deceased.     (Loeschigk  v. 
Hatfield,  5  Rob.  26.)     A  judgment-creditor  need  not  have  possession 
of  land,  to  enable  him  to  maintain  a  suit  in  equity  after  he   has  a 
sheriff's  deed,  to  cancel  a  deed  of  the  same  given  by  the  debtor  to  de- 


366  FORMS    OF     COMPLAINTS. 

fraud   him   before   he   recovered  judgment.     Hager  v.  Shindler,  29 
Cal.  47- 

37.  Practice  in  California. — The  proceedings  supplementary 
to  execution  are  special  proceedings  regulated  by  statute,  and  when  the 
execution  is  returned  unsatisfied,  the  judgment-debtor  may  be  made  to 
appear  within  the   County  where  he  resides.     (Cal.  Pr.  Act,  §  238.) 
They  are  a  substitute  for  a  creditor's  bill  in  the  old  practice.     (Adams 
v.  Hackett,  7  Cal.  187;  Byrd  v.  Badger,  i  Me  All.  443.)    The  obvious 
purpose  is  to  give  the  creditor  an  immediate  and  summary  remedy  against 
the  debtor's  property;  but  not  to  permit  the  rights  of  third  parties  to  be 
brought  into  litigation,  except  in  a  regular  way.  by  suit.     Goodyear  v. 
Betts,  7  How.  Pr.  R.  187;    The  People  v.  King,  9  Id.  97,  100;  Gas- 
per v.  Bennet,  1 2  Id.  307. 

38.  Practice — Examination  of  Debtor. — When  the  plaintiff 
proceeded,  under  Section  two  hundred  and  thirty-nine  of  the  Practice 
Act,  to  examine  his  judgment-debtor  as  to  a  judgment  held  by  him 
against  A.,  and  after  examination  obtained  an  order  to  apply  the  same 
to  the  judgment  of  plaintiff,  it  seems  that  it  is  not  necessary  to  make 
A.  a  party  to  the  proceeding.     Adams  v.  Hackett,  7  Cal.  187. 

39.  Practice — Refusal  to  Obey  Order. — A  commitment  for 
contempt,  for  refusing  to  obey  an  order  of  the  Court  commanding  the 
imprisonment  of  the  party  in  contempt,  until  he  shall  comply  with  the 
order,  should  set  forth  that  it  is  in  the  power  of  the  party  to  comply. 
Ex  par (e  Cohen,  6  Cal.  318. 

40.  Practice — Payment  to  Sheriff. — After  the  issuing  of  an 
execution  against  property,  any  person  indebted  to  the  judgment-debtor 
may  pay  to  the  sheriff  the  amount  of  his  debt.    (Cal.  Pr.  Act,  §  240.) 
In  order  to  bring  a  party  within   the  terms  of  this  section  of  the  Prac- 
tice Act,  there  must  be  a  judgment  and  an  execution  thereon  against 
property,  and  the  person  making  the  payment  must  be  indebted  at  the 
instant  to  him  against  whom  the  execution  runs.     (Brown  v.  Ayres,  33 
Cal.  525.)    Where  the  plaintiff,  after  a  verdict  in  his  favor,  and  before 
judgment,  assigned  the  cause  of  action  and  verdict,  the  assignment  was 
void,  and  the  payment  by  defendant  to  the  sheriff  was  a  satisfaction  of 
the  judgment     Lawrence  v.  Martin,  22  Cal.  173. 

41.      Practice — Order    to   Appear. — The   Court  may  order 
debtors  of  the  judgment-debtor  to  appear  and  be  examined  as  to  the 


CREDITORS'  SUITS.  367 

property  of  the  judgment-debtor  in  their  hands.  (Cal.  Pr.  Act,  §  241; 
Hathaway  v.  Brady,  26  Cal.  586.)  And  may  order  the  property  applied 
on  execution.  Cal.  Pr.  Act,  §  242;  see  Hathaway  v.  Brady,  26 
Cal  586. 

42.  Priority. — The  complainants  who  first  filed  the  bill  have  no 
preference  thereby  over  the  other  creditors;  all  may  have  a  pro  rata 
distribution.     (Day  v.  Washburn,  24  Hoiv.  U.  S.  352.)     So,  with  one 
of  numerous  bondholders  of  a  corporation,  who  are  secured  by  a 
mortgage  to  trustees,  the  other  bondholders  are  entitled  to  come  in  for 
their  proportion  of  the  mortgaged  premises.    Martin  v.  Somerville  Wat. 
Pow.  Co.,  27  How.  Pr.  161;  Pennock  v.  Coe,  23  flow.  U.S.  117. 

43.  Property  in  Possession. — To   sustain  an  order  that  he 
apply  property  in  his  possession  to  the  judgment,  it  is  not  enough  that  he 
has  it  in  his  possession.  It  must  appear  to  be  his  property.    If  the  con- 
trary appears,  the  remedy  to  test  the  title  is  for  the  receiver  to  bring 
action  for  the  property.     Rodman  v.  Henry,  17  N.Y.  482. 

44.  Relief. — The  relief  to  be  granted  will  be  only  what  on  the 
whole  appears  due  to  plaintiff.      (Bean  v.  Smith,  2  Mas.   232;  see 
Burton  v.  Smith,  13  Pet.  464.)     For  the  relief  granted  in  some  cases 
turning  upon  the  special  circumstances  shown,  see  Hagan  v.  Walker. 
14  How.    U.S.   29;  Green  v.  Creighton,   23  Id.  90;  Ogilvie  v.  Knox 
Ins.  Co.,  2  Black.  539;  Adler  v.  Fenton,  24  How.  U.S.  352. 

45.  Relation  of  Surety. — It   was  held   enough,   after  stating 
facts  to  show  the  relation  of  suretyship,  to  aver  that  the   creditor's  suit 
was  prosecuted  for  the  benefit  of  the  surety.     (Child  v.  Brace,  4  Paige, 
309.)     If  a  surety  has  a  counter  bond  or  security  from    the  principal 
debtor,  the  creditor  wil]  be  entitled  to  the  benefit  of  it,  and  may  in  equity 
subject  such  security  to  the  satisfaction  of  the  debt,  so  far  as  it  can  be 
done  without  trenching  upon  the  rights  of  the  surety  himself.     Van 
Orden  Admr.  v.  Durham,  35  Cal.  136. 

46.  Return  of  Execution. — It  is  immaterial  that  the  return  is 
made  at  the  request  of  the  plaintiff.     Forbes  v.  Waller,  25  N.Y.  430; 
25  How.  Pr.  1 66;  affirming  Forbes  v.  Logan,  4  Bosw.  475;  per  contra, 
Renaud  v.  O'Brien,  25  How.  Pr.  67. 

47.  Rights  of  Creditors. — A  creditor  who  has  exhausted  his 
remedies  at  law  can  attack  the  validity  of  an  assignment  on  the  ground 


368  FORMS   OF    COMPLAINTS. 

of  fraud,  and  reach  by  a  judgment  avoiding  the  assignment  any  property 
remaining  in  the  hands  of  his  assignees,  or  which  was  subject  to  their 
control.  Lawrence  v.  Bank  of  the  Republic,  3  Robertson,  142;  and  see 
30  N.Y.  320-322. 

48.  Sale  of  Property. — Every  sale   of  property  and  personal 
cnattels  is  good  between  the  parties,  and  cannot  be  attacked,  except  by 
a  creditor  who  has  recovered  judgment  and  taken  out  execution  against 
the  vendor,  which  has  been  returned  unsatisfied,  in  whole  or  in  part — 
with  the  single  statutory  exception  of  an  attaching  creditor;  and  his 
remedy  being  unknown  to  the  common  law,  he  must  show  affirmatively 
that  his  attachment  Jias  been  properly  issued  under  the  statute,  before 
he  can  attack  the  sale;     (Thornburg  v.  Hand,  7  Cal.  554.)     For  such  a 
purpose,  the  writ  of  attachment,  coupled  with  proof  of  the  debt,  is  inad- 
missible in  proof,  without  introducing  the  affidavit  and  other  requisites  to 
the  issuing  of  the  writ.     Id. 

49.  Sheriff's  Deed. — The  complaint  in  a  suit  in  equity  brought 
by  the  judgment-creditor,  who  has  a  sheriff's  deed  of  land,  to  set  aside 
and  cancel  a  deed  of  the  same  given  by  the  judgment-debtor  before  the 
recovery  of  judgment,  to  defraud  the  creditor,  need  not  aver  that  the 
plaintiff  has  exhausted  his  remedy  at  law  by  issuing  an  execution,  and 
having  it  returned  nulla  dona.     Hager  v.  Shindler,  29  Cal.  47. 

50.  Trustee,  who  is. — When  a  party  has  in  his  possession  or 
under  his  control  any  money  or  other  thing  capable  of  delivery,  which 
being  the  subject  of  the  litigation,  is  held  by  him  as  trustee  for  another 
party,  the  Court  may  order  the  same  to  be  deposited  in  the  court  or  de- 
livered to  such  party,  on   such   conditions  as  may  be  just.     Cal.  Pr. 
Act,  §  142. 

51.  Voluntary   Conveyance.— A  voluntary  conveyance  of  his 
property  to  his  wife,  by  one  about  to  engage  in  a  business  which  he 
believes  may  subject  him  to  losses,  in  order  to  secure  such  property 
for   himself  and   family   in   the  event  of  such  losses,  is  fraudulent. 
(Case  v.  Phelps,  39  N.Y.  164.)      Held,  that  a  voluntary  conveyance 
made    in    performance    of    previous   equitable   duty  to   convey,    in 
pursuance    of  an   oral    agreement   fully   performed   by  the    grantee 
could   not    be    impeached   by  an    immediate   creditor    subsequently 
recovering  judgment.      (39  Barb.  417;    Dyggert  v.  Reimerschnider, 
32  N.Y.  629.)     A  conveyance  without  consideration,  made  to  defraud 
the  creditors  of  the  grantors,  and  recorded,  is  valid  against  a  subse- 


CREDITORS'  SUITS.  369 

quent  purchaser  for  a  valuable  consideration.      Stevens  v.  Morse,  47 
N.H.  532. 

52.  When  Action  Lies. — Upon  the  question  how  far  a  creditor 
must  have  proceeded  by  judgment  and  execution  in  various  cases  before 
he  can  maintain  a  creditor's  suit  in  equity,  see  (Hagan  v.  Walker,  14 
How.  U.S.  29;  Green  v.  Creighton,  23  Id.  90;  Adler  ?J.  Fenton,  24  Id. 
407;  Jones  v.  Green,   i    Wall.   U.S.  330;  United  States  v.  Sturges,   i 
Paine,  525;  McCalmont  v.  Lawrence,   i  B  latch/.  332;  5  N.F9  Leg. 
Obs.  205;  Howe  v.  Cobb,  3  McLean,  270.)     This  remedy  may  still  be 
pursued.     (Hammond  v.  Hudson  River  Iron  and  Machine  Co.,  20 
Barb.  378;  Catlin  v.  Doughty,  12  How.  Pr.  457.)     The  right  to  this 
action  is  confined,  however,  to  the  judgment-creditor;  (Reubens  v.  Joel, 
3  Kern.  488;  Bishop  v.  Halsey,  3  Abb.  Pr.  400;  Cropsey  v.  McKinney, 
30  Barb.  47;)  for  his  own  benefit,  or  he  may  unite  with  other  creditors 
standing  in  the  same  relation  with  himself,  and  whose  judgments  have 
been  returned  unsatisfied.     (2  Barb.  Ch.  Pr.  154;  Edmistony.  Lyde,  I 
Paige,  637;  Wakeman  v.  Grover,  4  Id.  23;  Lentilhon  v.  MofFatt,  i 
Edw.  451.)     Mere  creditors  at  large  cannot  file  a  bill  to  reach  the 
assets  of  their  debtors.    (4  Johns.  Ch.  387;  8  Barb.  593;  3  Kern.  167.) 
A  creditor  whose  debtor  is  imprisoned  in  the  state  prison  for  a  term  less 
than  his  natural  life,  may  sue  and  subject  the  property  of  such  debtor  to 
the  satisfaction  of  his  debt  during  the  term  of  his  imprisonment.    Estate 
of  Nerac,  35  Cal.  392. 

53.  Who  may  Assign. — One  partner  of  a  firm,  expressly  or  by 
implication  sole  manager,  his  partners  being  absent,  may  assign  firm 
property  in  trust  for  benefit  of  creditors.     (Forbes  v.  Scannell,  1 3  Cal. 
242.)     A  gift  by  a  husband  to  a  wife,  made  when  he  is  free  from  debt, 
cannot  be  impeached  on  the  ground  of  debts  subsequently  contracted. 
(Phillips  v.  Wooster,  3  Abb.  Pr.  (N.S.)  475.)     In  a  complaint  in  a  cred- 
itor's action  seeking  to  set  aside  a  conveyance  as  fraudulent,  an  allega- 
tion that  a  grantee,  the  debtor's  wife,  gave  no  consideration  for  the 
premises  conveyed  to  her,  and  that  the  whole  consideration  came  from 
her  husband,  is  a  sufficient  allegation  of  bad  faith  or  fraudulent  intent  on 
her  part.     Newman  v.  Cordell,  48  Barb.  448. 

54.  Who    may    Sue. — A    creditor,  having  obtained  judgment 
against  a  debtor,  may  bring  suit  in  aid  of  execution.     (Hendricks  v. 
Robinson,  2  Johns.  Ch.  283.)     A  creditor  cannot  avoid  an  assignment 
merely  on  the  ground  that  it  contains  a  provision  which  is  illegal,  if  such 
provision  tends  to  his  benefit;  he  must  show  himself  injured  thereby. 

24 


37O  FORMS    OF     COMPLAINTS. 

(Fox  v.  Heath,  16  Abb.  Pr.  163.)'  Mere  creditors  at  large  cannot  file 
a  bill  to  reach  the  assets  of  their  debtor,  and  no  distinction  exists 
between  simple  contract  creditors  of  an  individual,  and  those  of  a  cor- 
poration. (4  Johns.  Ch.  387;  8  Barb.  593;  3  Kern.  167;  Miller  v. 
Earl,  24  N.Y.  no;  Dunlevy  v.  Tallmadge,  32  N.Y.  457;  Howell  v. 
Cooper,  37  Barb.  582;  Garbutt  v.  Smith,  40  Barb.  22;  Cooper  v. 
Bowles,  42  Barb.  87;  28  How.  Pr.  10;  Field  v.  Chapman,  24  How. 
Pr.  463;  15  Abb.  Pr.  434.)  And  even  a  general  creditor's  bill  is  not 
maintainable  by  a  creditor  at  large.  (Dunlevy  v.  Tallmadge,  32  N.Y. 
457;  reversing  Fassett  v.  Tallmadge,  18  Abb.  Pr.  48.)  A  sheriff  can- 
not institute  a  creditor's  suit  to  reach  the  proceeds  of  the  assigned  prop- 
erty, that  they  may  be  applied  on  an  execution  in  his  hands.  (Lawrence 
v.  Bank  of  the  Republic,  35  N.Y.  320;  reversing  S.C.,  3  Robertson, 
142.)  Creditors  of  an  indebted  corporation  are  entitled  to  the  aid  of  a 
court  of  equity  against  such  corporation  and  its  debtors.  Ogilvie  v. 
Knox  Insurance  Company,  2  Black.  U.S.  539. 


No.  483. 

vi.     Upon  a  Justice's  Judgment. 
[TITLE.]  - 

The  plaintiff  complains,  and  alleges: 

I.  That   on   the    ....    day    of   ,    1 8 . . ,   at 

,  before  J.P.,  a  justice  of  the  peace  in  and  for 

the  Town  of ,  County  of   ,  in  this 

State,  the  plaintiff  recovered  a  judgment,  which  was 
duly  given  by  said  justice,  against  the  defendant,  for 

dollars  damages  and dollars  costs, 

in  an  action  wherein  this  plaintiff  was  plaintiff,  and  the 
defendant  herein  was  defendant. 

II.  That   on   the    ....    day    of ,   18..,   a 

transcript  of  the  same  was  filed  and  docketed  in  the 

office  of  the  Clerk  of  the  County  of ,  in  this 

State  [in  which  county  the  defendant  then  resided]. 

III.  That  on  the  ....  day  of ,   18.  .,  an 


CREDITORS     SUITS.  371 

execution  was  duly  issued  upon  the  said  judgment, 
against  the  property  of  the  defendant,  and  addressed 
to  the  Sheriff  of  said County. 

\Continue  as  in  lastform.~\ 


54.  Allegation  where  Debtor's  Residence  is  Unknown. 

— That  on  the  ....  day  of ,  1 8  . . ,  an  execution  was  issued 

upon  the  said  judgment,  against  the  personal  and  real  property  of  the  de- 
fendant, to  the  Sheriff  of  said County,  in  which  county  was 

the  defendant's  last   known  residence  within  this  State,  his  residence 
at  the  time  of  said  execution  being  unknown  to  the  plaintiff,  and  not 
ascertainable,  though  the  plaintiff  made  diligent  inquiry  therefor. 

55.  Docketing. — The  docketing  of  justices'  judgments  must  be 
averred.     (Cripper  v.  Hudson,  13  N.Y.  161.)    The  filing  of  a  tran- 
script of  a  judgment  docket  of  a  District  Court  with  the  recorder  of 
any  other  county  makes  it  a  lien  upon  the  real  estate  in  that  county,  but  it 
does  nof  make  it  a  judgment  of  the  District  Court  for  that  county.  (People 
v.  Doe,  3 1  Cal.  220. )     It  is  the  duty  of  the  County  Clerk,  as  such,  and  not 
the  Clerk  of  the  District  Court,  as  such,  to  issue  execution.    District  courts 
have  no  power  to  issue  writs  of  assistance  in  cases  of  sales  upon  judgments 
rendered  by  justices  of  the  peace  or  other  district  courts.     (People  v. 
Doe,  31  Cal.  220.)     It  becomes  a  lien  upon  the  debtor's  real  property 
in  that  county  for  two  years  from  the  date  of  the  filing,  notwithstanding 
a  lien  by  virtue  of  the  same  judgment  has  previously  existed  and 
expired  by  lapse  of  time  in  another  county.     Donner  v.  Palmer,  23 
Cal.  40. 


No.  484. 

v.     Against  Debtor,  to  Reach  Demands  due  him  from  Third  Parties. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  \_Allege  rendition  of  judgment^ 

II.  That  on  the  ....  day  of 18. .,  said 

judgment  was  docketed  in  the  office  of  the  Clerk  of  said 


3/2  FORMS    OF     COMPLAINTS. 

County,  and  on  the  ....  day  of ,  1 8 . . ,  a  tran- 
script thereof  was   filed,  and   the  said  judgment  was 

Docketed  in  the  Clerk's  office  of  the  County  of , 

in  this  State. 

IIL     That  on  the  ....  day  of ,   18 . . ,  an 

execution  was  issued  upon  the  said  judgment  against 
the  personal  and  real  property  of  the  defendant,  to  the 

Sheriff  of  said County,  in   which  county  the 

defendant  then  resided. 

IV.  That  the  said  execution  was  returned  by  said 
Sheriff  wholly  unsatisfied. 

V.  That  before  the  commencement  of  the  action, 
and  after  the  indebtedness  had  accrued  upon  which  said 
judgment  was    obtained,  the    defendant   was,  and   for 
several  years   previous  thereto   had  been  engaged   in 

mercantile   business  at    ,   California,  and,    as 

the  plaintiff  is  informed  and  believes,  various  persons 
became  indebted  to  him  to  a  large  amount,  and  that  the 
defendant  had,  at  the  time  of  the  commencement  of  this 
action,  moneys  due  him  to  a  large  amount,  to  wit,  to  an 
amount  not  less,  as  plaintiff  is  informed  and  believes, 

than dollars,  a  considerable  portion  of  which 

are  evidenced  by  charges  on  his  books  of  account,  which 
the  said  defendant  refuses  to  produce,  or  allow  to  be 
examined  by  or  on  behalf  of  the  plaintiff;  and  the  plaintiff 
is  therefore  unable   to  specify,  and  cannot  learn,  and 
does  not  know,  the  particular  items  or  amount  of  said 
indebtedness,  or  the  names  of  the  several  persons  from 
whom  the  same  are  due;  but  is  informed  and  believes 
that  several  of  them,  owing  defendant  in  the  aggregate 

a  sum  not  less  than dollars,  reside  at , 

and  are  solvent  and  able  to  pay  the  respective  demands 
against  them. 


CREDITORS'  SUITS.  373 

Wherefore  the  plaintiff  demands: 

1.  That  the  said  defendant  be  adjudged  to  apply  to 
the    payment  of  said  judgment  and  interest  thereon, 
together  with  the  costs  of  this  action,  said  property, 
debts,  choses  in  action,  and  equitable  interests  belong- 
ing to  him,  or  held  in  trust  for  him,  or  in  which  he  is  in 
any  way  or  manner  beneficially  interested. 

2.  That  he  be  enjoined  from  selling,  transferring,  or 
interfering  with  said  property,  debts,  things  in  action, 
and  equitable  interests. 

3!  That  he  be  prohibited  from  making  an  assignment, 
or  confessing  any  judgment,  to  enable  other  creditors 
or  persons  to  obtain  a  preference  over  plaintiff,  or  to 
take  aay  portion  of  defendant's  property. 

4.  That  a  receiver  be  appointed  of  all  said  property, 
equitable  interests,  things  in  action,  and  effects  of  the 
said  defendant,  and  that  said  defendant  be  directed  to 
execute  to  him  an  assignment  thereof,  and  that  said 
receiver  sell  or  otherwise  dispose  of  the  same,  and  con- 
vert the  same  into  money,  as  soon  as  may  be,  and  apply 
so  much  of  the  proceeds  thereof  as  may  be  necessary 
for  that  purpose  to  the  payment  of  the  plaintiff's  said 
debts,  with  interest  and  costs  of  this  action. 


374  FORMS    OF    COMPLAINTS. 

JVo.  485. 

vi.     Against  Debtor  and  his  Trustee — To  Reach  the  Trust  Fund  or  its 

Income. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  judgment,  execution,  and  return^ 

II.  That  the  defendant    [A.B.]    is   the   beneficiary 
under  a  trust  created  by  deed  heretofore  executed  by 
him,   of  which   a  copy   is  hitherto   annexed,   marked 
"  Exhibit  A." 

III.  That   the   fund,  consisting  of  about    

dollars,  is  now  in  the  hands  of  the  defendant  [C.D.]  as 
trustee,  and  the  defendant  [A.B.]  is  entitled  to  receive, 

and  does  receive,  annually,  the  sum  of dollars 

therefrom. 

Wherefore  the  plaintiff  demands  judgment: 

i.  That  the  defendants  be  enjoined  respectively  from 
paying  over  and  from  receiving  said  fund,  and  that  the 
same  be  applied  to  the  satisfaction  of  the  plaintiff's 
judgment  and  interest,  and  the  costs  of  this  action. 


Form.  —  See  Scott  ».  Nevius,  6  Duer,  672;  Sillick  v.  Mason,  2  Barb. 
Ch.  79;  Havens  v.  Healy,  15  Barb.  296;  Cruger  v.  Jones,  18  Id.  467; 
Bramhall  v.  Ferris,  14  N.Y.  41. 

56.  Action  to  Enforce  Trust.  —  An  action  by  a  creditor  to 
enforce  the  trust  which  is  raised  by  the  statute,  in  favor  of  the  creditors 
of  a  person  paying  the  consideration  of  a  purchase  of  land  conveyed  to 
a  third  person,  is  not  an  arbitrary  creditor's  suit,  within  the  rule  that  the 
legal  remedy  must  first  be  exhausted.  McCartney  v.  Bostwick,  32 
53- 


57.    Enforcement  of  Trust.  —  A  court  of  equity  will  enforce  a 


CREDITORS     SUITS.  375 

trust  against  all  persons  who  with  notice  of  the  trust  came  into  the  pos- 
session of  the  trust  property  in  the  same  manner  and  with  the  like  effect 
as  against  the  original  trustee.  Lathrop  v.  Bampton,  31  Cal.  17. 

58.  Partner  as  Trustee. — If  two  partners  are  embarrassed  with 
debts,  and  one  executes  a  deed  to  the  other,  absolute  on  its  face,  with  a 
consideration  expressed,  of  both  his  individual  and  partnership  property, 
for  the  purpose  of  raising  money,  by  mortgaging  the  same,  to  pay  the 
debts  of  the  firm,  there  is  no  express  trust,  nor  does  a  trust  arise  by  im- 
plication of  law.     Burt  v.  Wilson,  28  Cal.  632. 

59.  Property  Held   in   Trust. — Property  held  in  trust  for  a 
debtor,  and  for  his  benefit,  or  arising  out  of  a  fund  proceeding  from  a 
third  person  in  trust,  to  secure  to  the  debtor  personally  a  support,  can- 
not be  reached  or  taken  by  a  judgment-creditor,  by  means  of  proceed- 
ings supplementary  to  execution.      (Locke  v.  Mabbett,  2  Keyes,  457.) 
The  provisions  of  Section  297  of  the  New  York  Code  were  never  intended 
to  be  applicable  except  to  a  case  where  it  is  clearly  established  or  is  admit- 
ted that  the  party  upon  whom  the  order  is  to  be  made  has  in  his  hands 
property  of  the  judgment-debtor  or  is  indebted  to  him.     If  these  facts 
are  not  established,  the  proper  course  is  to  appoint  a  receiver,  with  leave 
to  sue  in  equity,  to  ascertain  if  there  be  any  surplus  by  an  accounting. 
(Locke  v.  Mabbett,  2  Keyes,  457.)  A  trustee  cannot,  by  mingling  moneys 
with  other  funds,  change  his  character  from  that  of  trustee  to  that  of 
mere  debtor.     Gunter  v.  Janes,  9  Cal.  643. 

60.  State  Trust. — Courts  of  equity,  acting  on  their  own  inherent 
doctrines  of  discouraging,  for  the  peace  of  society,  antiquated  demands} 
refuse  to  interfere  in  attempts  to  establish  a  stale  trust,  except  where  the 
trust  is  clearly  established,  and  the  facts  have  been  fraudulently  and  suc- 
cessfully concealed  by  the  trustee  from  the  knowledge  of  the  cestui  que 
trust.     (Badger  v.  Badger,  2  Wall.  U.S.  87.)      A  valid  declaration  of 
trust  as  to  lands  held  for  the  use  of  another  may  be  made  at  the  time, 
and  does  not  necessarily  have  to  be  made  at  the  time  of  the  creation  of 
the  trust.     Sime  v.  Howard,  4  Nev.  Rep.  473. 


FORMS   OF    COMPLAINTS. 


No.  486. 

i.x.    Against  Debtor,  Seeking  to  Set  aside,  as  Fraudulent,   Transfer  of 

his  Assets  to  a  Third  Person  for  Note,  the  Note  Assigned 

for  Benefit  of  Creditors. 

[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  II.  and  III.    \_Allege  judgment  and  issue  and  re- 
turn of  execution,  as  in  previous  forms •.] 

IV.  That  on  the  ....  day  of ,   18.  .,  said 

A.  B.  was  a  merchant,  doing  business  at ,  and 

was  possessed  of  [designate  assets]. 

V.  That  on  that  day,  and  after  the  indebtedness  for 
which  the  plaintiffs  judgment  was  recovered  had  accrued, 
the  said  defendant  A.  B.,  in  contemplation  of  and  with 
full'  knowledge  of  his  insolvency,  made  a  pretended  sale 
of  his  said  stock  to  the  defendant  C.  D.,  then  a  clerk  in 
his  employ,  and  took  in  payment  therefor  his  promissory 
note  having  several  months  to  run,  but  for  what  exact 
amounts  the  plaintiff  does  not  know  and  cannot  state. 

VI.  That  the  defendant  C.  D.  was  and  is  wholly 
irresponsible  and  insolvent,  and  has  no  means  of  paying 
his  said  note,  except  such  moneys  as  he  may  derive 
from  the  sale  of  the  property  transferred  to  him  as  afore- 
said. 

VII.  That  .thereafter  and  on  the  said  day  the  said 
A.  B.  executed  and  delivered  to  the  defendant  E.  F.  an 
instrument  in  writing,  of  which  the  following  is  a  copy: 
\Copy  assignment^ 

VIII.  That  the  property  so  assigned  is  of  the  value 
of  about  ,  .  dollars. 


CREDITORS'  SUITS.  377 

IX.  That  the  said  note  of  the  said  C.  D.,  and  the 
said  assignment  to  E.  F.,  were  intended  by  each  and  all 
of  the  aforesaid  defendants  to  be  one  transaction,  and 
were  in  fact  one  transaction,  and  were  intended  for  the 
purpose  of  delaying,  hindering,  and  defrauding  the  cred- 
itors of  said  A.  B.,  by  putting  it  out  of  the  power  of  such 
creditors  to  reach  the  stock  and  assets  of  the  said  A.  B. ; 
that  such  sale  and  assignment  were  not,  nor  was  either 
of  them,  followed  by  immediate  and  continued  change 
of  possession;  that  ever  since  the  said  sale  and  assign- 
ment and  up  to  the  present  time,  the  said  property  has 
remained  in  the  actual  possession  and  under  the  control 
of  the  said  A.  B.,  who  has  retained  possession  and  con- 
trol thereof  under  the   pretence  that  he  is   agent   of 
said  C.  D. 

X.  That  the  defendant  A.  B.  has  not  any  property 
other  than  that  embraced  in  the  sale  and  assignment 
aforesaid,  out  of  which  the  execution  aforesaid  could  be 
satisfied  in  whole  or  in  part,  and  that  unless  the  said 
property  can  be  applied  to  the  payment  of  said  judg- 
ment, the  same  must  remain  wholly  unpaid. 

Wherefore  the  plaintiff  demands  judgment: 

1 .  That  the  said  sale  by  the  defendant  A.  B.  to  the 
said  C.  D.,  and  said  assignment  by  the  defendant  A.  B. 
to  the  defendant  E.  F.,  may  each  be  declared  fraudulent 
and  void  as  against  this  plaintiff. 

2.  That  a  receiver  of  all  the  property  and  effects  of 
the  said  A.  B.,  which  he  had  at  the  time  of  the  said  sale 
to  the  defendant  C.  D.,  or  at  any  time  thereafter,  be 
appointed. 

3.  That  the  defendant  be  adjudged  to  account  for  all 


378  FORMS    OF    COMPLAINTS. 

the  property  received  by  him,  under  either  the  sale  or 
assignment  aforesaid,  and  for  all  proceeds  arising  from 
the  sale  thereof,  and  deliver  the  same  to  such  receiver. 

4.  That  the  defendants  be  in  the  mean  time  enjoined 
from  disposing  of  any  of  said  property,  or  paying  away 
any  of  the  proceeds  thereof,  or  in  any  wise  interfering 
therewith. 

5.  That  the  said  receiver  be  directed  to  sell  the  said 
property,  or  so  much  thereof  as  may  be  necessary,  and 
to  pay  out  of  the  proceeds  of  said  property  the  judgment 
aforesaid,  and  the  costs  and  expenses  of  this  action,  and 
hold  the  balance  subject  to  the  order  of  this  Court. 


62.  Allegation  -where  Value  of  Assets  is  not  Sufficient 

to  Satisfy  the  Debt. — That  assets  to  the  value  of dollars 

have  been  delivered  by  the  executor  to  the  next  of  kin  of  the  deceased, 
but  the  value  of  said  assets  so  delivered  is  not  sufficient  to  satisfy  the 
plaintiff's  demand.     In  a  bill  against  a  fraudulent  grantee  of  a  deceased 
person,  it  is  not  necessary  to  aver  a  deficiency  of  the  personal  estate  of 
the  deceased;  it  is  sufficient  to  aver  the  fraud  and  t,he  waste  of  the  per- 
sonal assets  by  such  grantee,  who  was  also  the  personal  representative. 
McLaughlin  v.  Bank  of  Potomac,  7  How.  U.S.  220. 

63.  Equitable  Assets — To  maintain  a  creditor's  bill  in  chancery, 
in  order  to  reach  equitable  assets,  which  are  alleged  to  have  been  fraudu- 
lently conveyed,  it  is  not  sufficient  simply  to  aver  that  the  conveyance 
was  fraudulent,  but  facts  and  circumstances  must  be  set  forth  which  will 
reasonably  sustain  the  theory  of  the  bill.     (Kinder  v.  Macy,  7  Cal.  207.) 
A  non-negotiable  chose  in  action,  cannot  be  impeached  in  the  hands 
of  an  innocent  assignee  by  creditors  the  of  those  making  such  chose 
in  action.     Wright  v.  Levy,  12  Cal.  257. 


CREDITORS     SUITS.  379 

Wo.  487. 

v.   Against  Heir,  for  Debt  of  Creditors. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  [Allege  facts,  showing-  debt  of  ancestor  due,  and 
still  ^^,npaid~\. 

II.  That  on  the day  of ,  18 . . ,  at 

,  said  A.  B.  was  owner  in  fee  of  certain  prop- 
erty hereinafter  described,  and  that  on  the  same  day 

said  A.  B.  died  intestate;  and  that  more  than 

years  before  this  action,  to  wit:    on  the   ....    day  of 

,    1 8 .  . ,    letters  of    administration   upon   the 

estate  of  said  A.  B*.  were  issued  by  the  Probate  Court 

of County,  in  this  State,  appointing  one  C.  D. 

administrator  of  all  the  goods,  chattels,  and  credits  of 
said  deceased.  * 

III.  That   the   defendant   is   the  sole   heir  of  said 
deceased,  and  that  the  following   described   premises 
descended  from  the  deceased  to  him  as  such:   [descrip- 
tion of  premises^ 

IV.  That  the  personal  assets  of  said  A.  B.  .were  not 
sufficient  to  pay  and  discharge  the  plaintiff's  demand. 

Wherefore  plaintiff  demands  judgment: 

i .  That  said  premises  be  sold,  and  the  sum  of 

dollars,   with    interest   thereon  from   the    ....   day  of 

,  1 8 .  . ,  together  with  costs  of  this  action,  be 

paid  to  the  plaintiff  out  of  the  proceeds  thereof. 


380  FORMS    OF     COMPLAINTS.  . 

63.  Allegation  -where  Heir  or  Devisee  has  Aliened  the 

Land. — That  on  the  ....  day  of ,  1 8 . . ,  the  defendant  con 

veyed  the  said  premises  to  one  G.  H.,  and  that  the  premises  so  con- 
veyed by  him  were  reasonably  worth dollars. 

64.  Debt  Due. — It  is  not  necessary  to  aver  a  debt  due  in  the 
ancestor's  lifetime.     Parsons  v.  Parsons,  5  Caw.  476. 

65.  Description  of   Premises. — The  premises  should  be  de- 
scribed  with   reasonable  certainty.     (Sharp   v.  Sharp,  3    Wend.  278.) 
And  if  the  plaintiff  is  unable  to  ascertain  the  description  of  the  lands 
which  have   been  inherited,  the  fact  should   be  stated.     Parsons  v. 
Browne,  7  Paige,  354. 

66.  Executors. — Bill  filed  by  a  judgment-creditor  of  J.,  upon 
order  of  court  permitting  it,  against  the  defendants  as  executors.     Bill 
avers  that  the  will  of  deceased  "  directed,  by  written  or  oral  instructions," 
the  executors  to  sell  certain  cattle,  and  retain  the  proceeds  for  the  use 
and  benefit  of  J.,  after  first  discharging  his  then  debts;  that  it  also  de- 
clared that  he,  the  testator,  had  made  a  secret  assignment  for  J.,  which 
the  executor  would  carry  into  effect  according  to  his  instructions,  when 
convenient.     Bill  charges  that  defendants  have*  not  sold  the  cattle,  but 
have  converted  them  to  their  own  use.    Held,  that  a  demurrer  was  prop- 
erly sustained;  that  a  pleading  must  be  taken  most  strongly  against  the 
pleader,  and  that  there  is  no  law  giving  effect  to  an  pral  instruction  of  a 
testator  as  a  will  or  part  of  a  will;  and  that  the  creditors  of  J.  can 
have  no  more   rights  than   J.  himself.     Sparks   v.  De  la  Guerra,    14 
Cal.  in. 

67.  Heirs  and   Devisees. — In  suing  the  "heirs  and  devisees 
jointly,  it  must  be  averred  that  the  real  estate  descended  is  insufficient. 
(Schermerhorn  v.  Barhydt,  9  Paige,  28.)     To  similar  effect,  Wambaugh 
v.  Gates,  i  Hoiv.  App.  Cas.  247;  affirming  S.C.,  n  Paige,  505. 

68.  Joinder  of  Parties.— See  "Parties,"  Vol.  i.,  chap.  iv.     The 
heirs  and  personal  representatives  cannot  be  joined.     (Stuart  v.  Kissam, 
ii  Barb.  271.)     The  defendant  cannot,  in  one  count,  be  charged  both 
as  heir  and  as  next  of  kin.     Gere  v.  Clark,  6  Hill,  350. 

69.  Liability  of  Heirs. — This  subject  is  treated  in  Van  Deusen 
v.  Brower,  6  Cow.   50;  Whitaker  v.  Young,  2  Id.  569;  Schermerhorn 
v.  Barhydt,  9  Paige,  28;  and  see  Jackson  v.  Hoag,  6  Johns.  59;  Purdy 
v.  Doyle,  i  Paige,  558. 


CREDITORS'  SUITS.  381 

• 

70.  Personal  Assets  Insufficient. — It  must  be  shown  that  the 
personal  assets  of  the  deceased  were  insufficient  to  discharge  the  debt, 
before  the  real  property  can  be  reached.     (Roe  v.  Sweezey,  10  Barb. 
247;  Mersereau  v.  Ryerss,  3  N.F.   261.)     But  where  the  defendant  is 
not  sued  as  heir,  but  on  a  special  promise,  no  averment  of  assets   is 
necessary.     Elting  v.  Vanderlyn,  4  Johns,  237. 

71.  Right    of   Recovery. — The    special    facts   on   which  the 
plaintiff's  right  to  recover  depends,  should  be  alleged.     Gere  v.  Clarke, 
6  Hill,  350;  and  see  Mersereau  v.  Ryerss,  3  N.Y.  261. 


No.  488. 

xi.   Against  Next  of  Kin,  for  Debt  of  Ancestor. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  \_Allege    cause    of  action,    and   show   debt    still 
unpaid.~\ 

• 

II.  That  on  the day  of ,    18 . . ,  at 

......  .  .,  said   A.  B.  died  intestate;  and  that  on  the 

....  day   of  .  . .\ ,  1 8 .  . ,   letters  of  administration 

upon  the  estate  of  said  A.  B.  were  granted  to  C.  D.  by 
an  order  made  by  the  Probate  Court  of  the  County  of 
,  in  this  State,  appointing  said  C.  D.  adminis- 
trator of  the  estate  of  said  deceased. 

III.  That  before  the  commencement  of  this  action, 
said  administrator  paid  over  assets  of  the  estate  to  the 
defendant,  who   is  one  of  the  next  of  kin  of  the  de- 
ceased, amounting  to  the  sum  of dollars, 

\Demand  of  Judgment^ 


3$2  FORMS   OF    COMPLAINTS. 

| 

No.  489. 

xii.   Against  legatee,  for  Debt  of  Decedent. 

(TlTLE.1 

The  plaintiff  complains,  and  alleges: 

I.  \Allege    cause   of   action,    and    show   debt    still 
unpaid.'] 

II.  That  on  the day  of , '  1 8 .  . ,  at 

,  said  A.  B.  died,  leaving  a  last  will  and  testa- 
ment, by  which  one  C.  D.  was  appointed  sole  executor 

thereof,  and  that  on  the  ....  day  of ,  1 8 . . , 

said  will  was  duly  proved  and  admitted  to  probate  in 

the  Probate  Court  of County,  in  this  State,  and 

letters  testamentary  were  thereupon  issued  to  said  C.  D. 
by  said  Probate  Court. 

III.  That  by  said  will  the  said  A.  B.  bequeathed  a 
legacy  of dollars  to  the  defendant. 

IV.  That  before  the  commencement  of  this  action 
said  executor  paid  over  to  the  defendant,  as  such  legatee, 

the  amount  of  said  legacy  [or dollars,  being 

part  of  said  legacy],  out  of  the  assets  of  said  estate. 

[Demand  of  Judgment.] 


CHAPTER  II. 

FOR   DISSOLUTION   OF    PARTNERSHIP. 

No.  490. 

Common  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,    1 8 . . ,  at 

,  he  entered  into  partnership  with  defendant, 

under  an  agreement  [of  which  a  copy  is  hereto  annexed, 
marked  "Exhibit  A"]. 

II.  That  on  the  ....  day  of ,  1 8 .  . ,  the  de- 
fendant took  exclusive  possession  of  the   partnership 
books  and  stock,  and  prevented  the  plaintiff  from  hav- 
ing access  to  the  same  [or  state  any  facts  constituting 
a  breach  of  the  agreement. 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  the  said  partnership  be  dissolved. 

2.  That  a  receiver  of  the  property  thereof  be  ap- 
pointed, with  the  usual  powers. 

3.  That  the  defendant  be  restrained,  by  injunction, 
from  interfering  with  the  said  property. 

4.  That  the  same  be  applied:  first,  to  the  payment 
of  the  partnership  debts;  and  the  remainder  be  divided 
between  the  parties,  according  to  their  respective  rights. 

NOTE. — The  prayer  is,  of  course,  changed  to  suit  the  facts  in  each  case. 


384  FORMS    OF    COMPLAINTS. 

• 

1.  Accounting. — Whenever  a  partner  is  entitled  to  a  dissolution, 
the  taking  of  an  account  is  necessary,  and  follows  as  a  matter  of  course. 
(Cottle  v.  Leitsch,  35   Cal.  434.)     Claim  for  partnership  accounting, 
and  a  claim  against  a  third  party  fraudulently  holding  part  of  partnership's 
property,  may  be  united.     Wade  v.  Rusher,  4  Bosw.  537. 

2.  Adverse   Proceedings. — Where   one  partner  has  filed  his 
bill  for  a  dissolution  of  partnership  and  the  appointment  of  a  receiver, 
until  a  dissolution  has  been  judicially  declared,  and  a  receiver  ordered, 
they  are  not  prevented   from   resorting   to  adverse    proceedings,  and 
thereby  gaining  a  preference.     Adams  v.  Hackett,  7  Cal.  187;  Adams 
v.  Woods,  8  Id.  152;  9  Id.  24;  Naglee  v.  Lyman,  14  Id.  450. 

3.  Allegation  of  Partnership. — Partnership  must  be  proven 
like  any  other  fact,   and  cannot  be  established  by  mere  surmise  or 
innuendo.     (Hudson  v.  Simon,  6  Cal.  453.)     In  a  proceeding  for  the 
settlement  of  partnership  accounts,  a  petition  which  does  not  show 
the  existence  of  the  partnership,  and  did  not  contain  any  statement  of 
the  account  by  the  plaintiff,  nor  ask  for  a  statement  by  the  defendant, 
was  held  defective.     Pope  v.  Salsman,  35  Mo.  362. 

4.  Books  of  Partnership. — The  books  of  a  liquidating  partner- 
ship are  in  the  quasi  possession  of  the  law,  and  must  be  placed  in  the 
hands  of  a  receiver  in  all  circumstances.     Succession  of  Andrew,  1 6 
La.  An.  31. 

5.  Cause   must   be   Shown. — A  mere  desire  of  one  of  the 
partners  is  not  sufficient  to  authorize  the  Court  to  decree  a  dissolution 
of  the  same,  but  cause  must  be  shown.      Bradley  v.  Harkness,  26 
Cal.  69. 

6.  College  Corporation. — The  act  for  the  incorporation  of  col- 
leges provides  no  method  by  which  they  can  be  disincorporated  or  dis- 
solved.    But  the  general  corporation  act  (§  31)  prescribes  a  mode  for 
dissolving  trade  corporations  on  the  petition  of  the  stockholders.     This 
provision,  however,  can  have  no  application  to  a  corporation  for  literary 
purposes  having  no  stockholders,  and  there  is  no  statutory  provision  for 
dissolving  such  a  corporation.     People  v.  Pres.  and  Trust,  of  College  of 
Cal.,  Cal.  Sup.  Ct.,  July  T.,  1869. 

7.  Corporations. — Of  the  rules  of  pleading  in  actions  brought  to 


FOR    DISSOLUTION    OF    PARTNERSHIP.  385 

procure  the  dissolution  of  corporations,  see  (The  People  ex  rel  Mar- 
shall v.  The  Ravenswood  etc.  Turnpike  and  Bridge  Co.,  20  Barb. 
518.)  In  New  York,  a  complaint  which  asks  for  a  receiver  of  the 
property  of  a  corporation  which  is  sued,  without  asking  for  its  dissolu- 
tion, and  for  an  injunction  against  its  trustees,  without  making  them 
parties,  or  even  stating  who  they  are,  is  defective  and  demurrable.  Reid 
v.  The  Evergreens,  21  How.  Pr.  319. 

8.  Correcting  Errors. — A  court  of  equity  may  correct  errors  in 
the  settlement  of  partnership  affairs,  where  they  arise  from  misrepresent- 
ations innocently  made  by  one  or  more  of  the  firm.      Stephens  v.  Or- 
man,  10  Fla.  9. 

9.  Decree. — If,  in  an  action  to  wind  up  a   partnership  between 
plaintiff  and  defendant,  in  corporation  stock,  standing  in  the  name  of 
defendant,  it  appears  that  plaintiff  has  agreed   that  the   defendant  may 
retain  certain  shares  until  a  demand  against  the  estate  is   settled,  the 
Court  should  not  direct  a  conveyance  of  those  shares  without  proof  that 
the  demand  has  been  settled.     (Harper  v.  Lamping,  33  Cal.  641.)  The 
decree  should  not  order  the  private  sale  of  firm  property.     (Jones  v. 
Thompson,  12  Cal.  191.)     Where  the  complaint  alleges  that  dividends 
of  profits  were  to  be  made  at  stated  periods,  the  Court  may  decree  the 
payment  of  the  sum  due  for  such  dividends  before  final  distribution  of 
the  assets.     (O'Connor  v.  Stark,  2  Cal.  153.)     The  judgment  should 
not  be  in  the  alternative,  requiring  the  defendant  to  either  transfer  to  the 
plaintiff  his  part  thereof,  or  pay  him  a  certain  sum  of  money,  but  should 
direct  a  division  in  kind,  or  a  sale  and  division  of  the  proceeds.     (Har- 
per v.  Lamping,  33  Cal.  641.)     Where  a  bill  is  filed  to  settle  the  affairs 
of  a  partnership,  the  partnership  transactions  of  each  and  all   the  part- 
ners should  be  taken  into  account,  and  the  decree  should   include  all 
these  so  as  to  leave  nothing  open  for  future  litigation.     Griggs  v.  Clark, 
23  Cal.  427.     Raymond  v.  Came,  45  N.H.  201. 

10.  Distribution  of  Assets. — The  filing  of  a  bill  by  one  part- 
ner against  his  co-partners  for  dissolution  and  account,  and  praying  for 
an  injunction  and  receiver,  does  not  prevent  a  creditor  from  proceeding 
by  attachment,  and  gaining  a  priority  over  creditors,  until  a  final  decree 
of  dissolution  and  order  of  distribution.     Adams  v.  Woods,  9  Cal.  24. 

11.  Exclusion  of  a  Member. — Where  a  voluntary  association 
for  mutual  relief  excluded  plaintiffs  from  the  association,  because  of  their 

25 


386  FORMS    OF     COMPLAINTS. 

refusal  to  take  an  oath  not  required  by  the  constitution  or  by-laws,  and 
foreign  to  the  objects  thereof,  a  suit  for  dissolution  might  be  maintained. 
Gorman  v.  Russell,  18  Cal  688. 

12.  Joint  Account  Transaction. — Where  the  complaint  alleged 
that  the  plaintiff  composed  one  firm  and  the  defendant  another,  and 
entered  into  "  an  arrangement  to  transact  business  in  sugars  on  joint 
account,"  and  alleged  that  plaintiffs  had  shipped  to  defendants  sugar  to 
an  amount  greater  than  they  had  drawn  bills  against,  that  defendants 
had  failed  and  assigned  to  defendant  B.,  that  assignment  was  fraudulent 
and  void,  and  prayed  judgment  for  excess  specified,  for  half  of  the 
profits  and  appointment  of  a  receiver,  and  other  proper  relief:    Held, 
that  though  inartificial,  it  was  sufficient.      Davis  v.  Grove,   27   How. 
Pr.  70. 

13.  Form  of  Allegation. — The  proper  form  in  such  case  should 
allege  that  this  was  a  partnership  transaction;  that  credit  of  both  parties 
was  involved;  that  the  joint  names  and  credits  of  two  firms,  the  one  as 
drawers  and  the  other  as  acceptors,  were  the  means  by  which  they 
procured  the  moneys  that  bought  the  sugars;  that  the  same  were  bought 
on  joint  account  by  them  as  partners  in  the  transaction;  that  a  large 
amount  of  the  sugar  and  proceeds  thereof  were  on  hand ;  that  the  joint 
indebtedness  for  these  sugars  was  outstanding,  and  should  be  paid  out 
of  the  joint  property  arising  out  of  the  transaction,  and  that  an  account- 
ing should  be  had  between  the  parties,   and  that  an  injunction    be 
granted  and  a  receiver  appointed.     Davis  v.  Grove,  27  How.  Pr.  70. 

14.  Joint  Stock  Association. — A  portion  of  the  company  can- 
not, contrary  to  the  articles  of  association,  dissolve  the  company  at  their 
will  and  pleasure,  but  if  it  is  found  impracticable  to  keep  the  company 
together,  or  to  prosecute  successfully  the   contemplated  enterprise,  the 
Court  may  decree  a  dissolution  and  the  distribution  of  its  effects.     (Von 
Schmidt  v.  Huntington,  i  07.55.)  A  joint  stock  association,  formed  for  a 
definite  period,  cannot  be  voluntarily  dissolved,  except  by  the  unanimous 
consent  of  all  the  stockholders.    (Von  Schmidt  v.  Huntington,  I  Cal.  55.) 
Where  there  is  nothing  in  the  constitution  of  a  joint  stock  company  to 
regulate  the  remedies  of  shareholders,  the  general   law  of  partnership 
must  govern  them.     (Bullard  v.  Kinney,   10  Cal.  60.)     A  voluntary 
association  is  not  dissolved  by  the  withdrawal  of  two  of  its  members,  upon 
their  objecting  to  a  purchase  of  land,  and  refusing  to   pay  assessments, 
or  to  co-operate  in  its  business  and  to  participate  in  its  proceedings. 
Troy  Factory  v.  Corning,  45  Barb.  231. 


FOR    DISSOLUTION    OF    PARTNERSHIP.  387 

15.  Jurisdiction. — A  stipulation  in  articles  of  partnership,  that  all 
matters  of  controversy  shall  be  submitted  to  arbitration,  does  not  take 
away  the  jurisdiction- of  equity  to  decree   a  dissolution.     Meaher   v. 
Cox,  i  Ala.  156.  . 

16.  Receiver. — A  partner  filing  a  bill  for  dissolution,  and  to  enjoin, 
the  co-partnership  from  continuing  the  business  in  the  name  and  on  the 
credit  of  the  partnership,  is,  nevertheless,  not  entitled  to  have  a  receiver1 
appointed,  unless  the  co-partner  has  been  guilty  of  a  breach  of  duty,  or? 
of  the  partnership  contract.     (Wilson  v.  Pitcher,  3  Stockt.  (NJ.)  71.) 
The  appointment  of  a  receiver  is  only  a  means  to  attain  the  end  con- 
templated by  the  plaintiff.     Adams  v.  Woods,  8  Cat.  306. 

17.  Relief,  Prayer  for. — A  prayer  for  general  relief,  in  a  bill  by 
one  partner  against  another,  is  sufficient  to  authorize  a  sale  of  the  part- 
nership property.     Lyman  v.  Lyman,  2  Paine  1 1 . 

18.  Surrender  of  Franchise. — The  trustees  of  a   corporation 
have  the  power  to  surrender  the  franchise,  after  its  debts  are  paid,  and 
if  they  should  do  so  without  having  made  any  disposition  of  its  property, 
there  being  no  stockholders  or  creditors,  the  personal  property  of  the 
corporation   would   vest  in  the   State.      (2  Kent  Com.  386;  Angell  (Sf 
Ames  on  Corps.  §  195.    And  so  would  such  real  estate  as  was  acquired  by 
the  corporation  for  value,  the  vendor  having  no  interest  in  the  appro- 
priation of  the  property  to  any  specific  object,  and  no  reversion  where 
the  succession  fails.     People  v.  Pres.  and  Trus.  of  College  of  Cal.,  Cal. 
Sup.  Ct.,  July  T.,  1869;   Bacon  v.  Robertson,  18  How.  U.S.  480. 

19.  Tenants  in  Common  of  Mill. — Where    the    relation   of 
tenants  in  common  in  a  mill  was  established  between  two  persons,  and 
it  appeared  that  one  had  the  entire  management  of  the  concern,  occa- 
sionally paying  some  of  the  proceeds  to  his  co-tenant,  but  that  no  settle-, 
ment  had  taken  place:  Held,  that   though  there   was  no  partnership: 
shown,  it  was  a  proper  case   for  an   accounting  between   the  parties. 
Mitchell  v.  O'Neal,  $.Nev.  Rep.  504. 

20.  Water  Ditch. — A  complaint  in  an  action  for  an  accounting, 
touching  the  affairs,  rents,  and  proceeds  of  a  water  ditch,  and  for  a  sale 
of  the  property  and  a  division  of  the  proceeds,  which  first  avers  in  gen- 
eral terms  a  co-partnership  between  plaintiff  and  defendants  in  the  ditch, 
without  averring  any  partnership  agreement,  and  then  states  that  plaintiff 


388  FORMS    OF    COMPLAINTS. 

acquired  his  interest  in  the  ditch  by  the  purchase  of  an  undivided 
interest  from  other  persons  than  defendants,  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  either  for  a  dissolution  and  settlement 
of  the  affairs  of  a  partnership,  or  for  a  partition.  (Bradley  v.  Harkness, 
26  Cal.  69.)  The  complaint  in  this  case  alleging  that  plaintiff  and  de- 
fendant are  members  of  a  joint  stock  company,  known  as  the  "Miners' 
Ditch  Company;"  that  defendants  exclude  plaintiff  from  participation  in 
the  business  or  benefit  from  it;  that  they  have  received  large  sums  of 
money  from  the  same,  and  refuse  to  account  or  pay  him  anything,  etc., 
entitles  plaintiff  to  a  relief  by  a  decree  affirming  his  interest  and  direct- 
ing an  account.  Smith  v.  Fagan,  17  Cal.  178. 

21.  Winding  up  Affairs. — A  partner  is  always  entitled  to  have 
the  partnership  wound  up  by  a  sale  of  all  the  property,  as  the  best  mode 
of  ascertaining  its  value.  (Lyman  z>.  Lyman,  2  Paine,  n.)  Where  a 
partnership  is  liable  to  be  dissolved  at  the  will  of  either  party,  the  con- 
sequence of  such  dissolution  is  to  throw  the  winding  up  of  their  partner- 
ship affairs  into  a  court  of  equity,  unless  they  agree  on  the  mode  of 
settlement.  (Stevens  v.  Yeatman,  19  Md.  480.)  A  court  of  equity  will 
dissolve  a  partnership  when  the  respondent  in  a  suit  for  dissolution  does 
not  intend  to  carry  out  one  of  the  terms  of  the  partnership  agreement. 
(Meaher  v.  Cox,  37  Ala.  201.)  That  one  partner  cannot  by  withdraw- 
ing himself  from  the  association  before  the  period  stipulated  between 
the  partners  for  its  continuance,  either  dissolve  the  partnership  or  extricate 
himself  from  the  responsibilities  of  a  partner,  either  in  respect  to  his 
associates  or  to  third  persons,  but  the  partnership  may  be  put  an  end  to 
by  the  act  of  God,  or  by  operation  of  law,  (Pearpoint  v.  Graham,  4 
Wash.  C.  Ct.  232.)  In  the  voluntary  winding  up  of  a  joint  stock  com- 
pany, claim  made  to  the  liquidator  on  bank  notes  and  drafts  current  at 
the  time  of  the  stoppage  is  a  sufficient  demand  for  payment,  and  inter- 
est runs  from  the  date  of  such  claim.  In  re  East  of  England  Banking 
Co.,  Law  Rep.  4  Ch.  14. 


FOR    DISSOLUTION    OF   PARTNERSHIP.  389 

491. 

ii.     On  the   Ground  of  Assignment  by  Partner-. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  \_Allege  partnership  as  before]. 

II.  That  on   the    ....   day    of ,   18..,  at 

,  the  defendant  A.  B.,  without  the  knowledge 

or  assent  of  the  plaintiff,  assigned  and  transferred  to 
the  defendant  C.  D.,  all  his  interest  in  said  partnership, 
and  all  his  right,  title  and  interest  to  any  and  all  prop- 
erty of  said  firm. 

[Demand  of  Judgment J] 


22.  Dissolution   by   Assignment. — The   assignment  of  all 
joint  interest  in  a  patent,  by  one  joint  owner,  is  a  dissolution  of  the 
partnership  for  working  it.     (Parkhurst  v.  Kinsman,  i  Blatchf.  488.) 
A  partnership  'is  dissolved  by  the  cessio  bonorum  made  by  one  of  the 
members,  and  the  solvent  partner  being  bound  in  in  solido,  has  a  right 
but  not  an  exclusive  one  to  liquidate  its  affairs.     Saloy  v.  Albrecht,  17 
La.  An.  75. 

23.  Mining  Partnership. — One  of  the   partners  in   a  mining 
partnership  may  convey  his  interest  in  the  mine  and  business,  without 
dissolving  the  partnership.     Duryea  v.  Burt,  28  Cal.  569;  Skillman  v. 
Lachman,  23  Id.  198. 

24.  Sale    to    Stranger. — Evidence  that   a   partner   sold   to   a 
stranger  his  interest  in  a  stock  of  goods  belonging  to  the  firm,  but  not 
in  the  notes,  accounts  and  other  assets  of  the  firm,  and  that  the  pur- 
chaser formed  a  partnership  with  the  seller's  partners,  is  not  sufficient 
proof  of  the  dissolution  of  the  original  partnership.     (Cody  v.  Cody,  31 
Ga.  619.)     Where  one  partner  retires  from  business,  assigning  to  the 
other  all  his  interest  in  the  partnership's  property,  the  remaining  part- 
ner acquires  the  same  dominion  as  if  it  had  ever  been  his  own  separate 


39O  FORMS    OF    COMPLAINTS. 

jroperty.  (Dimon  v.  Hazard,  32  N. Y.  65.)  Where  one  partner  sells 
>ut  his  interest  in  the  partnership,  it  works  a  dissolution  of  the  same. 
(Bradley  v.  Harkness,  26  Cal.  69.)  The  introduction  of  new  members 
'nto  a  firm  works  a  dissolution  of  the  pre-existing  co-partnership, 
;xcept  for  the  purpose  of  collecting  the  assets  and  paying  the  debts  of 
the  concern.  Mudd  v.  Bast,  34  Mo.  465. 


.  No. 

iii.      Upon  Notice  of  Expiration  of  Term  of  Co-Partnership. 

I.  [Allege  partnership  as  in  preceding  forms. ~\ 

II.  That  on  the   ....   day  of ,   1 8 .  . ,  the 

defendant  [or  the  plaintiff],  pursuant  to  the  provision 
of  said  agreement,  gave  to  the  [defendant  or  plaintiff] 
a  written  notice  of  his  intention  to  dissolve  said  agree- 
ment, a  copy  of  which  is  hereto  annexed. 

[Demand  of  Judgment^ 

25.  Actual  Notice. — Notice  to  persons  who  have  dealt  with  the 
firm  must  be  actual  or  something  equivalent  thereto.  (Johnston  v. 
Totten,  3  Cal.  343;  Williams  v.  Bowers,  15  Id.  321;  Ennis  v.  Williams, 

30  Ga.  691.)     That  one  partner  told  several  persons,  prior  to  the  execu- 
tion of  the  note,  that  the  firm  was  dissolved,  is  inadmissible  to  prove  dis- 
solution where  no  notice  is  shown  to  the  plaintiff.     (Parsley  v.  Ramsay, 

31  Ga.  403.)     Publication  in    a  local  newspaper  is  not,   in    North 
Carolina,     notice     from     which     actual     notice     will     be     inferred. 
(Scheiffelin  v.  Stevens,  I  Wins.  (No.  i),  106.)    Nor  in  Louisiana.    (Reillyz>. 
Smith,  1 6  La.  An.  31.)     That  the  question  of  notice  is  a  question  of 
fact  for  the  jury,  (Rabe  v.  Wells,  3  Cal.  148.)     And  its  publication  is 
a  fact  from  which  the  jury  will  infer  actual  notice.     (Treadwell  v.  Wells, 
4  Cal.  260.)     The  following  notice  of  the  dissolution  of  partnership 
was  published:  "B.  having  disposed  of  his  interest  in  the  firm  of  A.  & 
Son  to  A.,  the  firm  is  this  day  dissolved.    A.  assumes  all  the  liabilities  of 
the  old  firm,  and  for  such  purpose  will  use  its  name,  and  to  whom  all 
debts  due  to  the  firm  will  be  paid."     This  paper  was  signed  by  both.     If 
made  bona  fide,  it  is  a  written  dissolution  of  the  partnership.     Armstrong 
v.  Fahnestock,  19  Md.  58. 


FOR    DISSOLUTION    OF   PARTNERSHIP.  39! 

26.  Express  Notice. — Express  notice  given  by  publication  in  a 
newspaper  is  conclusive  on  those  who  have  not  had  dealings  with  the 
firm,  and  as  to  those  who  have  had  dealings,  it  will  be  received  as 
evidence  of  notice.     (Shurlds  v.  Tilson,  2  McLean,  458.)     An  osten- 
sible partner  retiring  from  a  firm  must  give  notice  of  his  retirement,  or 
he  will  be  liable  to  creditors  of  the  continuing  firm  on  contracts  made 
by  them  after  his  retirement.     (Williams  v.  Bowers,  15  Cal.  321.)     A 
member  of  a  firm  retiring  therefrom  without  publishing  notice  of  the 
dissolution,  is  not  liable  on  a  note  signed  in  the  firm's  name  by  another 
member,  given  to  a  new  customer  eleven  years  after  the  retirement. 
Farmers'  Bank  v.  Green,  i  Vroom  (N.f.)  316. 

27.  Mutual    Consent. — Where  a  partnership  is  dissolved   by 
mutual  consent,  a  court  will  assume  control  of  its  business  and  appoint 
a  receiver  only  when  it  appears  necessary,  to  protect  the  interest  of  the 
parties,  and  not  as  a  matter  of  course.     (Cox  v.  Peters,  3  Beasley  (N.y.} 
39.)     One  who  has  been  accustomed  to  deal  with  a  firm  is  entitled  to 
assume  that  it  continues  to  exist  until  he  receives  actual  notice  of  its 
dissolution.     (22  Wend.  183;  Mechanics'  Bank  v.  Livingston,  33  Barb. 
45$.)     In  New  York,  the  dissolution  of  a  limited  partnership  by  filing 
a  notice  with  the  County  Clerk,  and  by  publication  for  four  weeks  ( i  Rev. 
Stat.  767,  §  24),  does  not  become  operative  until  the  complete  perform- 
ance of  both  those  acts.     (Fanchawe  v.  Lane,  16  Abb.  Pr.  71.)     Such 
notice  is  necessary  to  exonerate  the  members  of  a  firm  from  liability  on  a 
promissory  note  made   in  its  name  after  dissolution.     (City   Bk.  of 
Brooklyn  v.  McCheeney,  20  N.Y.   240;  City  Bank  of  Brooklyn   v. 
Dearborn,  Id.  244.)     When  notice  of  change  of  firm's  name  is  relied 
on  to  exonerate  retiring  partner,  such  change  must  show  that  he  has 
retired  from  the  business.     American  Linen  Thread  Co.  v.  Wortendyke, 
24  N.Y.  550. 

28.  Offer  to  Dissolve. — Allegation  by  one  partner,  contained  in 
a  pleading,  of  his  desire  to  dissolve,  is  not  equivalent  to  an  acceptance 
of  an  offer  to  dissolve  made  by  the  other  party  a  month  previous. 
Bank  of  N.Y.  v.  Vanderhorst,  32  N.Y.  553. 

29.  When  Dissolution   may  be  Obtained. — A  partnership 
that  has  no  limit  in  respect  to  time  may  be  dissolved  by  either  party 
at  will.    (Chit,  on  Con/.  208.)    Yet  where  parties  have  agreed  to  enter  into 
such  a  partnership,  the  refusal  of  one  of  them  to  enter  is  a  good  cause 
of  action  to  the  other.     (Skinner  v.  Tinker,  34  Barb.  333.)     A  provi- 


392  FORMS    OF    COMPLAINTS. 

sion  in  articles  of  co-partnership  presenting  a  definite  period  for  its 
continuance,  is  sufficient,  without  any  prohibition  of  an  earlier  dissolu- 
tion, to  prevent  either  party  from  dissolving  it  at  will.  Smith  v.  Mu- 
lock,  i  Abb.  Pr.  (N.S.)  374. 


No.  493. 

iv.    On  the  Ground  of  Bankruptcy  of  Partner. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  \Allege  partnership  as  before^\ 

II.  That  on  the day  of ,    18 . . ,  at 

,  the  defendant  was  declared  a  bankrupt  by 

the  United  States  District  Court  for  the  District  of  Cal- 
ifornia, and  that  by  reason  of  such  declaration  of  bank- 
ruptcy the  partnership  has  been  greatly  discredited, 
and  has  sustained  loss. 

[Demand  of  Judgment.  \ 


30.  Bankruptcy. — A  decree  of  bankruptcy  against  a  member  of 
a  firm  operates  as  a  dissolution  of  the  partnership,  and  the  assignee  be- 
comes tenant  in  common  with  the  solvent  partner.  The  joint  property 
remains  in  the  hands  of  the  solvent  partner  clothed  with  a  trust.  He 
can  enter  into  no  new  partnership  engagement,  but  his  whole  authority 
is  limited  to  settling  and  closing  the  partnership  concerns.  (3  Kent's 
Com.  59;  Story  on  Part.  §  i,  328,  341,  407.)  And  ordinarily  the 
assignee  has  no  right  to  interfere  with  the  administration  of  the  effects 
of  the  firm.  Matter  of  Norcross,  i  N.Y.  Leg.  Obs.  100. 


FOR    DISSOLUTION    OF    PARTNERSHIP.  393 

No.  494. 

v.  On  the  Ground  of  Misappropriation  of  Funds. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  \_Allege  partnership  as  before.~\ 

II.  That  since  the  commencement  of  said  partnership, 
the  defendant  has,  from  time  to  time,  applied  to  his  own 
use,  from  the  receipts  and  profits  of  said  business,  large 
sums    of   money,    greatly    exceeding    the    proportion 
thereof  to  which  he  was   entitled,  to  wit,  the  sum  of 
. dollars. 

Ill  That  the  defendant  still  continues  to  collect  the 
co-partnership  debts  and  appropriate  the  money  to 
his  own  use,  greatly  exceeding  the  proportion  thereof 
to  which  he  is  entitled. 

Wherefore  the  plaintiff  demands  judgment: 

1 .  That  the  said  co-partnership  may  be  dissolved. 

2.  That  a  receiver  of  the  property  thereof  be   ap- 
pointed, with  the  usual  powers. 

3.  That  an  account  be  taken  of  all  the  said  co-part- 
nership dealings  and  transactions,  from  the  commence- 
ment thereof,  and  of  the  money  received  and  paid  by 
the    plaintiff  and    defendant   respectively    in    relation 
thereto. 

4.  That  the  defendant  be  restrained   by  injunction 
from  interfering  with  the  debts  or  moneys  or  property 
or  effects  of  said  partnership. 

5.  That  the  property  of  the  firm,  real  and  personal, 


394  FORMS    OF     COMPLAINTS. 

be  sold,  and  the  co-partnership  debts  and  liabilities  be 
paid  off,  and  the  surplus,  if  any,  divided  between  the 
plaintiff  and  defendant,  according  to  their  respective 
interests. 

6.    And  for  such  other  and  further  relief  as  may  be 
just,  with  the  costs  of  this  action. 


31.  False  Entry  in  Books. — Where  one  partner  has  the  man- 
agement of  the  partnership  affairs,  and  makes  false  entries  in  the  books, 
and  defrauds  his  co-partner  of  a  portion  of  the  partnership  receipts, 
and  retains  the  same  to  his  own  use,  the  partner  defrauded  is  entitled  to 
a  dissolution  and  an  accounting.  (Cottle  v.  Leitch,  35  Cal.  434.)  The 
taking  of  an  account  follows  dissolution  as  a  matter  of  course.  Id. 


No.  495. 

vi.    By  Administrator,  for  Dissolution  of  Co- Partner  ship,  on  the  Ground 
of  Death  of  Partner. 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on   the day  of ,   18 .  . ,  at 

,  one  A.  B.  entered  into  partnership  with  the 

defendant,  under  an  agreement  of  which  the  following  is 
a  copy:  \_Copy  agreement^ 

II.  That  the  said  co-partnership  business  was  entered 
upon  pursuant  to  said  agreement,  and  continued   to  be 
carried  on  under  and  pursuant  to  the  same  up  to  the 
time  of  the  death  of  the  said  A.  B. 

III.  That  on  the day  of ,  18.  .,  at 

......  . . ,  the  said  A.  B.  died. 

IV.  That  at  the  time  of  the  death  of  the  said  A.  B. 
there  was  on  hand  partnership  assets  to  the  amount  or 


FOR    DISSOLUTION    OF    PARTNERSHIP.  395 

value  of  about    dollars,   as  follows:  \Specify 

personal  property  audits  value,  real  property,  describ- 
ing it  and  its  value,  and  other  property,  as  book  accounts, 
etc.,  and  their  value. ~\ 

V.  \_Allege  appointment  of  plaintiff  as  executor  or 
as  administrator,  as  in  Form  No.  56.] 

VI.  That  ever  since  the  death  of  said  A.  B.  the 
said  defendant  has  continued  in  the  possession  of  the 
said  real  and  personal  property,  and  to  manage  and 
carry  on  said  business,  and  dispose  of  said  property, 
and  to  collect  the  debts  and  things  in  action,  and  to  pay 
debts  and  liabilities  of  said  firm  out  of  the  avails  thereof; 
and  that  he  has  so  collected  large  sums,  the  amount  of 
which  the  plaintiff  does  not  know  and  cannot  ascertain. 

VII.  That  the  defendant  has  not  paid  over  to  the 
plaintiff,  as  admistrator  of  the  estate  of  said  A.  B.,  any 
money  or  other  proceeds  of  said  co-partnership  since 
the  death  of  said  A.  B.,  nor  has  he  assigned,  transferred, 
or  delivered  over  to  said  plaintiff,  as  administrator,  any 
of  the  assets,  securities,  .or  property  of  said  co-partner- 
ship. 

VIII.  That  the  defendant  is  insolvent,  and  is  unable 
to   give   any  security  for  payment  to  the  plaintiff  as 
representative  of  said  A.  B.  for  the  value  of  the  interest 
of  said  A.  B.  in  said  co-partnership. 

IX.  That  the  plaintiff  has  requested  of  said  defend- 
ant a  statement  and  account  of  said  co-partnership  trans- 
actions, which  the  defendant  refused  to  give. 

Wherefore,  the  plaintiff  demands: 

i.     That  an  account  may  be  taken  of  all  the  said 
co-partnership  dealings  and  transactions,  from  the  time 


396      '  FORMS   OF    COMPLAINTS. 

of  the  commencement  thereof  to  the  time  of  dissolution 
by  the  death  of  said  A.  B.,  and  of  the  moneys  received 
and  paid  by  the  said  partners  respectively  in  regard 
thereto,  and  that  he  account  for  all  dealings  with  and 
transaction  in  regard  to  the  property,  assets,  and  effects 
of  said  firm  since  its  dissolution  by  the  death  of  said 
A.  B.,  and  the  property  sold  or  disposed  of  by 
him,  either  as  surviving  partner  or  otherwise,  and  of 
the  moneys  collected  and  received  and  paid  out  by  him 
on  account  thereof. 

2.  That  the  defendant  may  be  adjudged  to  pay  the 
plaintiff,  as  administrator  as  aforesaid,  the  residue  which 
shall  appear  to  be  due  to  the  estate  of  said  A.B.,  after 
payment  of  all  the  debts  of  the  firm. 

3.  That  a   receiver  be   appointed,  with   the    usual 
powers  and  duties,  and  under  the  usual  directions;  and 
that  the  defendant  may  be  restrained  by  order  of  this 
court  from  disposing  of  or  in  any  manner  interfering 
with  the  property  and  effects  of  said  firm,  or  from  col- 
lecting or  receiving  the  co-partnership  debts  or  other 
moneys  coming  to  said  firm.     • 

4.  For  such  other  or  further  relief  as  may  be  just, 
with  costs  of  this  action. 


NOTE. — Under  our  statute,  a  surviving  partner  has  the  absolute  right 
to  settle  up  tjie  affairs  of  the  co-partnership,  subject  always  to  judicial 
inquiry. 

32.  Compensation  Allowed. — Where  the  partnership  has  been 
carried  on  some  time  after  the  dissolution  by  death,  and  such  continu- 
ance has  proved  beneficial,  he  may  be  allowed  compensation  for  his 
services,  to  be  deducted  from  the  profits.     Griggs  v.  Clark,  23  Cal.  427. 

33.  Credit  Allowed. — A  surviving  partner,  who  administers  upon 


FOR    DISSOLUTION    OF    PARTNERSHIP.  397 

the  partnership  affairs,  may  be  allowed  a  credit  on  his  inventory,  for  a 
debt  due  by  the  deceased  partner,  and  for  a  debt  due  by  himself  to  the 
firm,  at  the  same  time  both  debtors  being  insolvent.  Crow  v.  Weidner, 
36  Mo.  412. 

34.  Dissolution  by  Death. — The  partnership  is  dissolved  by 
death.     (Scholefield  v.  Eichelberger,  7  Pet.  586;  Burwell  v.  Mandeville, 
2  How.  Pr.  560.)     The  death  of  a  partner  is  not  a  revocation  of  the 
agency.     Bank  of  N.Y.  v.  Vanderhorst,  32  N.Y.  553. 

35.  Rights  of  Survivor. — When  a  partnership  is  dissolved  by 
the  death  of  one  of  its  members,  the  surviving  partner  is  to  wind  up 
the  affairs  of  the  partnership,  pay  its  debts  out  of  its  assets,  and  divide 
the  residue  among  those  entitled  to  it.     (Gleason  v.  White,  34  Cal. 
258;  Loeschigk  v.  Addison,  19  Abb.  Pr.  169.)     He  has  the  exclusive 
right  of  possession,  and  absolute  power  of  disposing  of  the  assets. 
(Laws  of  Cal.  1850;  Estates  of  Deceased  Persons,  §  198;  Allen  v.  Hill, 
1 6  Cal.  113.)     He  may  transfer  the  title  to  a  chose  in  action  of  the 
firm;  and  after  such  transfer  the  remedy  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest.     (Roys  v.  Vilas,  18  Wis.  169.)     In 
Louisana,  on  the  death  of  a  partner,  his  interest  in  the  assets  of  the 
concern  become  vested  in  his  heirs  at  law,  and  the  surviving  partners 
can  only  acquire  that  interest  by  transfer  and  assignment  from  the 
heirs,  and  thereby  acquire  the  right  to  sue  for  a  debt  in  their  own  name. 
(Skipworth  v.  Lea,  16  La.  An.  247.)     The  right  of  a  surviving  partner 
to  administer  the  partnership  effects  is  not  an  absolute  right,  but  depends 
upon  the  consent  of  the  heirs.     McKowen  v.  McGuire,  15  La.  An.  637. 


No.  496. 

vii.    By  a  Creditor,  to  Dissolve  a  Corporation. 


The  plaintiff  complains,  and  alleges: 

I.  and  II.    \_Aver  incorporation,  and  aver  judgment 
and  execution  unsatisfied^ 

III.    That  said  company  has  become  and  is  insolvent, 
and  unable  to  pay  its  debts. 


398  FORMS    OF    COMPLAINTS. 

IV.  That  the  defendants  [officers]  are  the  trustees  [or 
directors]  of  said  corporation. 

V.  \State  what  acts  the  trustees  have  done  to  unlaw- 
fully dispose  of  the  property  of  the  corporation,  and  thus 
jeopardise  the  creditor  s  claim.~\ 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  said  corporation  be  dissolved. 

2.  That  said  judgment,  execution,  and  levy  be  set 
aside. 

3.  That  the  directors  of  said  company  account  for 
their  management  and   disposition  of  the  funds   and 
property  of  said  corporation  committed  to  their  charge, 
and  that  they  pay  all  sums  of  money  that  may  be  found 
to  be  due  from  them,  and  the  value  of  all    property 
which  they  may  have  acquired  themselves,  or  transferred 
to  others,  or  lost  or  wasted,  by  any  violation  of  their 
duties  as  directors. 

4.  That  said  company  and  its  officers  be  restrained 
from  exercising  any  of  its  corporate  rights,  privileges,  or 
franchises,  and  from  collecting  or  receiving  any  debts  or 
demands,  and  from  paying  out,  or  in  any  way  transfer- 
ring or  delivering  to  any  person,  any  of  the  moneys, 
property,  or  effects  of  such  corporation,  until  the  further 
order  of  the  Court. 

5.  That  a  receiver  of  its  property  and  effects  may  be 
appointed. 

6.  And  for  the  costs  of  this  action. 


CHAPTER  III. 

DIVORCE. 

No.  497. 

i.    On  the  Ground  of  Adultery. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  plaintiff  and  defendant  are  husband  and  wife, 

that  they  intermarried  at   ,  in  the   County  of 

.........  State  of ,  on  or  about  the    .... 

day  of ,  1 8 . . ,  and  ever  since  have  been,  and 

now  are  husbanpl  and  wife. 

II.  That  the  plaintiff  is  and  has  been  a  resident  of 

the   State  of ,  for  the  period  of  ....  months 

immediately    preceding     the    commencement     of    this 
action. 

III.  And   plaintiff,  on    her   information    and  'belief, 
alleges  that    the  defendant    did,   on  the    ....   day  of 
,  1 8 .  . ,  commit  adultery  with  one ' . , 

at \_name  the  place,  and  describe  the  house~\ . 

IV.  Plaintiff  further  alleges,  on  her  information  apd 
belief,  that  defendant,  on  divers  days  and  times  between 
said  last  mentioned  day  and  the  commencement  of  this 

action,  has  committed  adultery  with  the  said , 

and  is  now  living  and  cohabiting  with  the  said  , ,  • , 

at  the  place  and  in  the  house  above  mentioned. 


4-OO  FORMS    OF    COMPLAINTS. 

V.  Plaintiff  further  alleges  that  each  and  all  of  said 
acts  of  adultery  were  committed  without  the  consent, 
connivance,   procurement,   or  previous     knowledge    of 
plaintiff,    and    that   she   has   not    lived    or    cohabited 
with    defendant   since   she   became   cognizant   of  the 
commission  by  the  defendant  of  the  several  acts  of 
adultery  complained  of. 

VI.  Plaintiff  further  alleges  that  the  defendant  is 
the  owner  and  possessed  of  the  following  described 
real  and  personal  property:    [particularly  describe  it, 
and  state  its  value\ ,  all  of  which  has  been  acquired  by 
him  since  their  said  marriage. 

VII.  Plaintiff  alleges  that  the  rents,  issues,  and 
profits  of  said  real  property  are  of  the  monthly  value  of 
about dollars,  in  United  States  gold  coin. 

VIII.  Plaintiff  furthes  alleges  that  there  are  now  liv- 
ing of  the  issue  of  their  said  marriage children. 

\State  their  sex,  names,  and  ages^\ 

IX.  Plaintiff  further  alleges  that  she  is  in  indigent 
circumstances,  and   wholly  dependent   upon  her  own 
labor  for  her  support  [or  that  she  is  in  ill  health,  or  too 
aged  to  earn  her  livelihood,  and  is  dependent  on  the 
charity  of  her  friends  for  support.] 

Wherefore  plaintiff  demands  judgment: 

i .  That  the  bonds  of  matrimony  between  herself  and 
the  defendant  be  dissolved,  and  that  the  custody  of  the 
said  minor  children  be  awarded  to  the  plaintiff. 

2.  That  such  portion  of  the  common  property  be 
allowed  'and  set  apart  to  plaintiff  as  shall  be  equitable 
and  just,  and  that  the  defendant  be  enjoined  and  re- 


FOR    DIVORCE.  4<DI 

strained  from  disposing  of  or  in  any  manner  encumbering 
the  property  herein  described. 

3.  That  the  defendant  may  be  required  to  pay  a  rea- 
sonable sum  into  court,  to  defray  the  expenses  of  this 
action,  and  for  counsel  fees;  and  that  he  pay  to  plaintiff 
such  further  sum  for  alimony  as  to  this  court  may  seem 
just,  for  her  support  during  the  pendency  of  this  action. 
Plaintiff  prays  for  general  relief. 


1.  Adultery,  how  Alleged. — The  allegation  of  adultery  must 
not  be  too  general.     (Codd  v.  Codd,  2  Johns.  Ch.   224;  Whispell  v. 
Whispell,  4  Barb.  217;  Wood  v.  Wood,  2  Paige,  108;  Kane  v.  Kane, 
3  Edw.  389.)      But  a  failure  to  demur  is  a  waiver  of  such  objection. 
(Consult  Conant  v.  Conant,  10  Cal.  249;  see,  also,  Ingersoll  v.  Inger- 
soll,  i  Code  R.  1 02.)     That  the  adultery  of  the  husband  entitled  a  wife 
to  divorce,  see  Mehle  v.  Lapeyrollerie,  16  La.  An.  4. 

2.  Alimony  Pendente  Lite. — The  court  has  power  to  order 
the  husband  to  pay  money  to  the  wife  for  her  support  during  the 
litigation,   and  for  counsel  fees  and  other  legal  expenses.     (Ex  parte 
Perkins,  18  Cal.  50.)     And  it  may  be  enforced  by  imprisonment  for 
contempt.     (/<£)   Alimony  pendente  ti/e  may  be  allowed  without  statutory 
authority,  the  power  to  grant  it  being  incident  to  the  power  to  grant 
the  divorce.     (Petrie  v.  People,  40  ///.  334.)     It  was  allotted  on  the 
average  annual  earnings  of  a  husband,  a  master  mariner,  though  at  the 
time  of  his  answering  the  petition  for  alimony  he  was  temporarily  out 
of  employment.      (Thompson  v.  Thompson,  Law  Rep.   i  P.  &  D. 
553.)     In  a  suit  by  wife  against  the  husband  for  divorce,  he  is  charge- 
able with  the  real  value  of  such  professional  services  as  the  fvife  may 
procure.   (Sprayberry  v.  Merk,  30  Ga.  81;  Armstrong  v.  Armstrong, 
35  HI.   109.)      What  allowance  a  husband,  who  sues  his  wife  for  a 
divorce,  will   be  required   to  make   to  her  for  the   expenses  of  her 
defense,  by  the  courts  of  Washington   Territory,   see   (Thorndike  v. 
Thorndike,   i  Wash.  Terr.  198.)     Where  husband  and  wife  have  been 
living  apart  for  many  years,  and  the  wife  has  supported  herself,  and  is 
still  able  to  do  so,  alimony  pendente  lite  will  not  be  allowed.     Burrows 
v.  Burrows,  Law  Rep.  i  P.  &  D.  554;  George  v.  George,  Id. 

26 


4-O2  FORMS   OF    COMPLAINTS. 

3.  Alimony — Maryland  Rule — In  Maryland,  courts  of  chan- 
cery exercise  jurisdiction  to  grant  alimony  to  the  wife,  but  only  upon 
allegation  of  facts  which  would  be  a  sufficient  foundation  in  England 
for  granting  a  divorce  a  mensa  et  thoro.      (Willingford  v.  Willingford, 
6  Har.  and  J.  485;  Helens  v.  Franciscus,  2  Bland.  Ch.  R.  568.)   And 
New  York  follows  the  procedure  of  the  English  Courts.     2  John.  Ch. 
R.    206;    5  Id.  464;   3  Cowen,  590;    6  John.   Ch.  R.   25;    4  Paige 
Ch.  R.  74;  Galland  v.  Galland,  Cal.  Sup.  Ct.,  Jul.  T.,  1869. 

4.  Allegation  of  Adulterous  Intercoure. — That  the  defend- 
ant has  committed  adultery  with  one  A.  B.,  and  ever  since  the  .... 

day  of Is,  1 8 . . ,  has  been  living  in  adulterous  intercourse  with 

him  [her],  at  the  house  known  as ,  on Street,  in 


5.  Allegation  where  Name  is  Unknown. — That  on  the 

....  day  of ,  1 8 . . ,  at  the  house  known  as ,  on 

Street,  in  the  City  of  .    ,  the  defendant  committed 

adultery  with  a  man  {or  a  woman]  whose  name  is  unknown  to  this 
plaintiff.     This  allegation  is  sustained  by  (Germond  v.  Germond,  6 
Johns.  Ch.  347.)     The  place  should  be  distinctly  stated.     Heyde  v. 
Heyde,  4  Sand/.  692;  Kane  v.  Kane,  3  Edw.  389. 

6.  Charge,   how    Stated. — The  charge  of  adultery  should  be 
stated  with  reasonable  certainty  as  to  time  and  place,  so  as  to  enable 
the  defendant  to  prepare  to  meet  it  on  the  trial.     (Conant  v.  Conant, 
10   Cal.  249.)     Where,  in  a  suit  of  divorce  brought  by  the  wife,  she 
charged  in  her  complaint  that  adultery  had  been  committed  by  her  hus- 
band whilst  she  was  living  with  him,  "  at  the  city  of  San  Francisco,  at 
divers  times,  with  persons  to  the  plaintiff  unknown;"  and  adultery  com- 
mitted since  she  ceased  to  live  with  him,  "  at  the  said  City  of  San 
Francisco,  with  divers  other  persons,  whose  names  are  to  the  plaintiff 
unknown:"  Held,  that  the  complaint  was  demurrable,  but  that  the  de- 
fendant, oy  failing  to  demur,  waived  the  objection  so  far  as  the  want  of 
specification  of  the  acts  constituting  the  charge  is  concerned.  (Id.)  The 
statute  has  not  altered  any  of  the  ordinary  rules  for  pleading  for  cases  of 
divorce,  except  that  nothing  can  be  taken  by  admission  or  default.  The 
object  of  this  exception  is  to  prevent  collusion  between  the  parties,  and 
when  this  is  accomplished  the  ordinary  rules  apply.    (Id.)    In  averring 
the  offense,  in  an  action  for  divorce,  on  the  ground  of  adultery,  pre- 
cision as  to  time,  place,  and  circumstances,  is  required.     For  examples 
of  sufficient  and  insufficient  averments,  see  (Anonymous,  1 7  Abb.  Pr. 


FOR    DIVORCE.  403 

48;  Wood  v.  Wood,  2  Paige,  108;  and  history  of  Germond  v.  Ger- 
mond,  there  cited;  Walton  v.  Walton,  32  Barb.  203;  S.C.,  sub  nom. 
Anonymous,  n  Abb.  Pr.  231;  as  to  suits  for  separation,  Eaton  v. 
Eaton,  7  Notes  of  Cases  in  Ecc.  Courts,  1-27.)  A  bill  for  divorce  should 
contain  allegations  of  every  fact  the  existence  of  which  is  made  neces- 
sary by  the  statute  in  order  to  the  granting  of  the  divorce.  (White  v. 
White,  45  N.H.  121.)  For,  though  direct  proof  of  the  actual  commis- 
sion of  the  crime  is  not  required,  yet  the  proximate  facts  must  lead  by 
a  fair  inference  to  a  necessary  conclusion,  a  conclusion  so  far  inev- 
itable that  the  supposition  of  .innocence  cannot  by  any  just  course  of 
reasoning  be  reconciled  with  it.  Anonymous,  17  Abb.  Pr.  48. 

7.  Common  Property. — In  the  absence  of  an  allegation  in  a 
complaint  for  divorce,  that  there  is  common  property,  the  presumption 
would  be  that  there  was  none.    (Kashaw  v.  Kashaw,  3  Cal.  312.)    It  is 
proper  to  declare,  for  the  information  of  the  Court,  in  what  the  common 
property  consists,  its  nature  and  value.     (Id.)     The  statute  which  pre- 
scribes what  shall  be  common  property,  as  between  husband  and  wife, 
and  how  it  shall  be  divided  in  case  of  a  divorce,  is  a  mere  regulation 
of  a  right  of  property,  and  does  not  provide  a  new  right  of  action.     A 
complaint  for  relief  under  this  statute  need  not  therefore  comply  with 
the  rules  governing  the  forms  of  pleadings  in  statutory  actions.  (Gimmy 
7>.  Doane,  22  Cal.  635.)     The  failure  of  a  complaint,  in  an  action  for  a 
division  of  common  property,  to  state  with  sufficient  particularity  the 
facts  showing  the  character  of  the  property,  is  a  defect  of  form  which 
must  be  objected  to  by  demurrer.     Id. 

8.  Common    Property,    Disposition    of. — In  an  action  for 
divorce  for  extreme  cruelty,  where  nothing  is  said  in  the  pleading  about 
the  disposition  of  the  common  property,  it  is  error  to  award  it  all  to  one 
of  the  parties.     Howe  v.  Howe,  4  Nev.  Rep.  469. 

9.  Condonation. — Condonation  is  a  constitutional  forgiveness,  and 
a  repetition  revives  the  condoned  injury,     (i  Hagg.  Ecc.  745;  Smith 
v.  Smith,  4  Paige,  432;  Johnson  v.  Johnson,  Id.  460;   14  Wend.  637; 
Burr  v.  Burr,  10  Paige,  29.)     And  former  injuries  will  be  revived  by 
misconduct  of  a  slighter  nature  than  such  as  to  constitute  an  original 
ground  for  a  divorce.     (2  Hagg.  114;  Burr  v.  Burr,  10  Paige,  20;  see, 
also,  Whispell  v.  Whispell,  4  Barb.  217.)      Connivance  destroys  all 
claim  to  remedy  by  way  of  divorce.     Myers  v.  Myers,  41  Barb.  114. 

10.  Consent. — The  Court  will  not  proceed  on  the  ground  of  the 


404  FORMS   OF     COMPLAINTS. 

consent  to   a  dissolution   of   the  marriage  contract.      Williamson  v. 
Williamson,  i  Johns.  Ch.  488. 

11.  Custody  of  Child. — A  wife  suing  for  divorce  on  the  ground  of 
extreme  cruelty,  is  entitled  to  the  custody  of  their  female  child  of  tender 
years.     (Wand  v.  Wand,  14  Cal.  512.)     There  is  no  error  in  requiring 
the  husband  to  maintain  a  minor  child    committed  to  the  mother's 
custody,  after  a  divorce  obtained  on  account  of  his  misconduct.    Arm- 
strong v.  Armstrong,  35  ///.  109. 

12.  Improper    Familiarities.— Ri  a  case  of  adultery,  proof  of 
improper  familiarities,  not  amounting  to  criminality,  was  received  to 
characterize  the  conduct  of  the  party  charged;  and    such  proof  was 
allowed  of  facts  which  occurred  before  the  time  in  which  the  offense  was 
alleged  to  have  been  committed.     Lockyer  v.  Lockyer,  i  Edw.  107. 

13.  Injunction. — In  an  action  for  divorce  brought  by  a  wife,  an 
injunction  was  allowed  upon  the  complaint  to  restrain  the  defendant 
from  removing  his  property  out  of  the  State.    (Vermilyea  v.  Vermilyea, 
14  How.Pr,  470;    6  Abb.  Pr.  511;    Rose  v.  Rose,   n  Paige,   169; 
Lawrie  v.  Lawrie,  9  Id.  234.)     And  where  the  husband  fraudulently 
assigned  his  property,  both  he  and  his  assignee  were  enjoined  from  dis- 
posing of  it.     Questel  v.  Questel,  Wright's  Ohio  Rep.  92. 

14.  Joinder  of  Courts. — Two  or  more  of  the  above  grounds  of 
divorce  may,  in  California,  be  united  in  the  same  complaint,  but  they 
should  be  separately  stated,  and  demand  of  judgment  should  be  framed 
accordingly.     But  it  seems  that  in  New  York,  charges  of  adultery  and  of 
cruel  usage,  being  distinct  and  independent,  and  leading  to  distinct  issues 
and  decrees,  cannot  be  united.     (Pomeroy  v.  Pomeroy,  i  Johns.  Ch.  606; 
Johnson  v.  Johnson,  6  Johns.  Ch.  163;    Smith  v.  Smith,  4  Paige,  92; 
Rose  v.  Rose,  n  Id.  166.)    And  the  same  rule  is  applied  under  the 
Code  of  Procedure.     Mclntosh  v.  Mclntosh,  12  How.  Pr.  289. 

15.  Jurisdiction. — In  an  action  for  divorce  brought  by  the  wife, 
.the  judge  of  the  court  in  which  the  action  is  pending  has  no  jurisdic- 
,tion  to  hear  and  determine  in  the  district  court  of  an  adjoining  county, 
of  the  same  district,  an  application  by  the  wife  for  an  allowance,  pen- 
dente  lite,  and  for  the  custody  of  the  children  of  the  marriage.    (Bennett 
.»..  Southard,  35  Cal.  688.)     It  can  only  be  made  in  the  court  where  the 
.action  is  pending. 

J.6.     Marriage,  Averment  of. — The  averment  of  marriage,  if 


FOR    DIVORCE.  405 

not  denied,  need  not  be  proven.  (Fox  v.  Fox,  25  Cal.  587.)  In  suit 
for  divorce  on  the  ground  of  adultery,  the  marriage  must  be  proved.  It 
will  not  be  inferred  from  matrimonial  cohabitation  with  the  reputation 
of  being  married.  (Case  v.  Case,  17  Cal.  598.) 

17.  Marriage,  -when  Void. — Though  a  marriage  be  ipso  facto 
void,  as  where  a  party  was  insane,  yet  it  is  proper  that  it  should  be  de- 
clared void  by  a  judicial  tribunal,      i  Black.  Com.  439;  i  Collins  on  Lun. 
554;  Sid.  112;  Prec.in  Ch.  203;  i  Eg.  Cas.  Abr.  278;  9  Mod.  98;  i  Ves. 
&1  Bean.  140;  Wightman  v.  Wightman,  4  Johns  Ch.  343;  Perry  v.  Perry, 
2  Paige,  501. 

18.  Name  of  Adulterer. — The  name  of  the  person  with  whom 
defendant  committed  adultery  should  be   given,  if  known,  though,  to 
avoid  scandal,  it  has  been  held  the  name  need  not  be  given  if  sufficient 
certainty  can  otherwise  be  had.     Far  v.  Far,  34  Miss.,  597. 

19.  Parties. — The  wife,  in  a  suit  for  divorce,  may  make  a  party  of 
any  one  claiming  interest  in  the  common   property.     (Kashaw  v.  Ka- 
shaw,  3  Cal.  312.)     In  New  Hampshire,  a  bill  for   divorce  cannot  be 
prosecuted  by  a  third  person  where  libellant  dies  before   entry   of  the 
bill.'  Kimball  v.  Kimball,  44  N.H.  122. 

20.  Residence  of  Six  Months. — The  plaintiff  must  aver  and 
prove — though  it  is  not  denied — that  he  or   she   has   been  a  bona  fide 
resident  of  this  State  six  months  before  making   the  application  for  a 
divorce.     (Bennett  v.  Bennett,  28  Cal.  599.)     A  man's   residence  is 
that  place  where  his  family  dwells,  or  which  he  makes  the  chief  seat  of 
his  affairs  and  interests.     (Matter  of  Hawley,  i  Dale,  531.)     The  domi- 
cile of  the  husband  is  the  domicile  of  the  wife,  and  the  plaintiff  must  be 
considered  a  resident  of  this  State,  where  the  husband  has  resided  since 
1850.     (Kashaw   v.  Kashaw,  3  Cal.  312;  Beard  v.  Knox,  5   Cal.  257; 
see,  also,  Moffat  v.  Moffat,  Id.  281.)     To  constitute  a  residence,  within 
the  legal  meaning  of  the  term,  there  must  be  a  settled  fixed  abode,  an 
intention  to  remain  permanently,  at  least  for  a   time,  for   business  or 
other  purposes.     (Frost  v.  Brisban,   19  Wend,  n;    Matter  of  Hale,  2 
N.Y.  Leg.  Obs.  139.)     In  New  Hampshire,  an  offense  committed  when 
both   parties  were  out  of  the  jurisdiction  of  the  Court  is  not  a  ground 
for  divorce.     Frost  v.  Frost,  17  N.H.  251. 

21.  Second  Action. — A  plaintiff  may  bring  a  second  action  for 
divorce  for  subsequent  acts  of  adultery.     The   practice  of  resorting  to 


.406  FORMS    OF    COMPLAINTS. 

supplemental  complaint   is   not   compulsory.     Cordier  v.  Cordier,  26 
How.  Pr.  187. 

22.  Time  and  Place. — In  averring  the  offense  in  an  action  for 
divorce  on  the  ground  of  adultery,  precision  as  to  time,  place  and  cir- 
cumstances is  required.  (2  Paige,  108;  see  n  Abb.  Pr.  231;  7  Notes 
ofCasestnEcd.Cts.i—2'j;  Anonymous,  17  Abb.Pr.  48.)  As  above  cited, 
where  a  plaintiff  in  his  complaint  alleged  that  five  years  had  not  elapsed 
since  he  discovered  the  fact  that  such  adultery  had  been  committed  by  the 
defendant,  without  his  consent,  connivance,  or  procurement,  it  is  not  suf- 
ficient it  should  aver  that  the  adultery  charged  was  committed  without 
the  consent,  connivance,  etc.  (Myers  v.  Myers,  41  Barb.  114.)  The 
complaint  must  allege  that  the  discovery  by  the  plaintiff  of  the  defend- 
ant's criminality  took  place  within  a  certain  time  before  the  commence- 
ment of  the  suit.  (Zorkowski  v.  Zorkowski,  27  How.  Pr.  37.)  In 
Illinois,  the  time  is  sufficiently  alleged  if  it  is  stated  to  have  happened 
before  the  commencement  of  the  action.  Hawes  v.  Hawes,  33  ///.  286. 


No.  498. 

ii.     On  the  Ground  of  Desertion.  • 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  \_Allege  marriage  as  in  previous  form.~\ 

I 1 .  \_Allege  residence  as  in  prev  ious  form .  ] 

III.  That    on    or    about    the  year    ,  the 

said    defendant,    disregarding    the    solemnity    of    his 
marriage    vow,    willfully  and    without    cause    deserted 
and   abandoned  the  plaintiff,  and  ever  since  has  and 
still  continues  so  to  willfully   and  without  cause  desert 
and  abandon  said  plaintiff,  and  to  live  separate  and  apart 
from  her,  without  any  sufficient  cause  or  any  reason,  and 
against  her  will,  wish,  or  consent. 

[Demand  of  Judgment.  \ 


FOR    DIVORCE.  407 

22.  Consideration. — The  offer,  after  that  period,  to   return  and 
live  with  the  wife,  will  not  defeat  the  action,  unless  the  offer  is  accepted 
and  acted  upon.     (Benkert  v.  Benkert,  32  Cal.  467.)     The   refusal  of 
a  wife  to  accompany  her  husband  on  a  change  of  his  residence  is  willful 
desertion,  if  unattended  by  excusing   circumstances,  and  if  followed 
by  a  cessation  of  matrimonial  cohabitation.     (Hardenberg  v.  Harden- 
berg,  14  Cal.  654.)     Desertion  consists  in  actual  cessation  of  matrimo- 
nial cohabitation,  coupled  with  intent  to  desert.     Id.;  also  see  Morrison 
v.  Morrison,  20  Cal.  431. 

23.  Intent. — Intent  is  presumed  from  proof  of  prolonged  abandon- 
ment without  apparent  cause.     Id. 

24.  Voluntary  Separation. — Where,  on  the  inability  of  a  hus- 
band to  support  his  wife,  they  separate  voluntarily,  and  she   returns  to 
her  relatives,  the  separation  is  not  a  willful  desertion  on  his  part,  though 
he   should  cease   to   correspond   with  her.     Ingersoll  v.  Ingersoll,  49 
Penn.  St.  249. 

25.  Willful. — In  suits  of  divorce  "  willful  "  signifies  intentional. 
Benkert  v.  Benkert,  32  Cal.  467. 

26.  Willful  Desertion. — In  California,  willful  desertion  for  the 
space  of  two  years  is  ground  for  divorce.     (Conant  v.  Conant,  10  Cal. 
249.)     But  it   must  be  without  the  consent  of  the   other  party.     Ben- 
kert v.  Benkert,  32  Cal.  467. 


No.  499. 

iii.    On  the  Ground  of  Conviction  for   Crime. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  \_Allege  marriage  as  in  preceding  forms^\ 

II.  [Allege  residence  as  in  preceding  forms •.] 

III.  That  at  the term  of Court 

,  in  the  County  of ,  State  of  Cali- 
fornia, and  before  this  action,  the  defendant  was  [duly] 


408  FORMS    OF    COMPLAINTS. 

convicted  of  the  crime  of ,  and   [duly]   sen- 
tenced by  the  said  Court  to  confinement  in  the  state 

prison  of  said  State  for  the  term  of years, 

and  in  pursuance  of  the   said  sentence  the  defendant 
is  now  confined  in  said  state  prison. 

[Demand  of  Judgment, ,] 


JVo.  500. 

iv.     On  Grounds  of  Extreme  Cruelty. 
[TITLE.] 

I.  \Allege  marriage  as  in  Form  No.  497.] 

II.  [Allege  residence  as  in  Form  No.  497.] 

III.  That  since  said   marriage,  the   defendant   has 
treated  her  in  a  cruel  and  inhuman  manner,  and  in  par- 
ticular as  follows:   On  the  ....  day  of ,  1 8 .  . , 

at    ,  the  defendant  [here  state  the  particular 

acts  of  cruelty,  specifying  date  and  place  for  each,  and 
the  nature  of  the  act\. 

[Demand  of  Judgment^  '  *  ; ,. 


27.  Alimony  -without  Divorce. — The  question  was  decided 
that  a  wife,  who  without  cause  or  provocation  is  driven  from  her 
husband's  house,  with  her  infant  child,  and  is  wholly  without  the 
means  of  support,  may  maintain  an  action  against  the  husband 
for  a  reasonable  allowance,  for  the  maintenance  of  herself  and 
child,  without  coupling  with  the  application  a  prayer  for  a  divorce. 
(Gallandz;.Galland,  Cal  Sup.  Ct.Jul.  T.,  1869.)  "The  doctrine  extends 
through  the  entire  field  of  our  law,  as  administered  alike  in  the  common 
law,  equity,  and  ecclesiastic  tribunals,  that  in  effect  whenever  the  wife  is 
adjudged  entitled  to  live  separate  from  her  husband,  by  reason  of  breaches 
of  matrimonial  duty  committed  by  him,  a  concurring  adjudication 
must  be  pronounced  that  he  support  her  while  so  living;  the  one  adju- 


FOR   DIVORCE.  409 

dication  being  commensurate  in  extent  with  the  other,  and  neither  one 
existing  without  the  other."  (See  Galland  v.  Galland,  Cal.  Sup.  Cl.,Jul. 
T.,  1869,  and  cases  there  cited.)  In  several  states,  by  legislative  pro- 
ceedings, an  allowance  for  the  separate  maintenance  of  the  wife,  dis- 
connected with  proceedings  for  a  decree  of  divorce,  is  authorized. 
(Galland  v.  Galland,  Cal.  Sup.  Ct.,  Jul.  T.,  1869.)  "  We  therefore  con- 
ceive that  the  chancellor,  before  the  statute  and  since,  in  cases  not 
embraced  by  it,  which  have  strong  moral  claims,  had  and  has  jurisdic- 
tion to  decree  alimony,  leaving* the  matrimonial  chain  untouched,  and 
that  those  authorities  which  decide  in  favor  of  such  jurisdiction  ought 
to  prevail."  The  same  proposition  is  maintained  in  (Purcell  v.  Purcell,  4 
Hen.  &  Mun.  507;  Almond  v.  Almond,  4  Randolph,  662;  Logan  v. 
Logan,  2  B.  Mun.  142;  Prather  v.  Prather,  4  Desares,  33;  Rhame  v. 
Rhame,  i  McCord  Ch.  R.  197;  Glover  v.  Glover,  16  Ala.  JR.  446; 
Galland  v.  Galland,  Cal.  Sup.  Ct.,  Jul.  7'.,  1*869.)  ^  *s  better,  say  our 
Court  in  the  above  case,  to  abandon  the  subterfuge  to  which  courts 
have  sometimes  resorted  in  such  cases  "as  a  pretext  for  jurisdiction," 
and  administer  the  appropriate  relief  without  the  "pretext."  Gal- 
land v.  Galland,  Cal.  Sup.  Ct.,  Jul.  T.,  1869. 

28.  Allegation  of  Cruelty. — The  specific  acts  which  constitute 
the  cruel  treatment  must  be  stated.     Anonymous,  n   Abbotts'  Pr.  231; 
S.C.,  sub  nom.  Walton  v.  Walton,  32  Barb.  203. 

29.  Common   Property. — Where   the   decree   of  divorce,  for 
extreme  cruelty,  in  an  action  in  which  there  was  no  averment  in  the 
pleadings  as  to  the  common  property,  awarded  it  all  to  the  plaintiff: 
Held,  that  in  so  far  as  it  purported  to  make  disposition  of  or  direction 
concerning  such  property,  it  should  be  reversed,  and  the  cause  remanded 
for  amendment  of  the  pleadings  and  for  further  proceedings.     (Howe 
v.  Howe,  4  Nevada  Reports,  469.)     There  is  no  doubt  that  the  Court, 
in  granting  a  divorce,  has  authority  to  direct  the  defendant  to  pay  the 
plaintiff  alimony,  and  the  allowance  may  be  based  upon  his  earnings, 
or  his  ability  to  earn  money.     (Bishop  on  Mar.  and  Div.  §  604.)     The 
party  found  guilty  of  either  adultery  or  extreme  cruelty  shall  only  be 
entitled  to  such  portion  of  the  common  property  as  the  court  granting 
the  decree  may,  in  its  discretion,  from  the  facts  of  the  case,  deem  just 
and  allow;  and  such  allowance  shall  be  subject  to  appeal  in  all  respects, 
including   the   exercise   of  discretion   by  the  court   below.     Stat.  of 
Cal.  1857,  I  199. 

30.  Condonation. — An  offer  by  a  wife  to  return  to  her  husband 


4IO  FORMS    OF    COMPLAINTS. 

and  live  with  him,  made  pursuant  to  an  order  of  court  for  her  support,* 
in  lieu  of  an  allowance,  is  not  a  condonation  of  his  previous  cruel  treat- 
ment. Retz  v.  Retz,  19  Abb.  Pr.  90. 

31.  Cruelty  without  Violence. — There  may  be  extreme  cruelty 
without  the  slightest  violence.    If  it  appear  probable  that  the  life  of  one 
of  the  parties  will  be  rendered  miserable  by  any  character  of  miscon- 
duct on  the  part  of  the  other,  although  no  personal  violence  be  appre- 
hended, a  separation  should  be  decreed.     (Reed  v.  Reed,  4  Nev.  Rep. 
395.)     Language  may  constitute  a  cruelty.     (Durant  v.  Durant,  i  Hagg. 
Eccl.  R.  769;  Lockwood  v.  Lockwood,  2  Curtis  Eccl.  R.  281;  cited 
and  approved  in  Bihin  v.  Bihin,  17  Abb.  Pr.  26.)     Cruel  and  inhuman 
treatment,  to  justify  a  limited  divorce,  need  not  consist  of  injury  to  the 
person.     (Hetley,  149;  i  Hagg.  Eccl.  R.  776,  769;  2  Cur.  Eccl.  R.  281 : 
Bihin  v.  Bihin,  1 7  Abb.  Pr.  19.)     It  is  such  conduct  as  furnishes  reason- 
able apprehension  that  the  continuance  of  the  cohabitation  would  be 
attended  with  bodily  harm.  .  Morris  v.  Morris,  14  Cal.  76;  Powelson  v. 
Powelson,  22  Cal.  358;  see,  also,  Mahone  v.  Mahone,  19  Cal.  626. 

32.  Extreme  Cruelty. — Extreme  cruelty  means  the  same  thing 
under  the  statute  as  sceviiia  or  cruelty  under  the  English  ecclesiastical 
courts.     (Morris  v.  Morris,  14  Cal.  76.)     If  either  party  inflicts,  by 
violence  on  the  other,  bodily  pain,  as  by  whipping,  or  by  threatening  or 

.attempting  to  commit  adultery,  or  by  curses  and  abuses,  or  by  using 
insulting  or  opprobrious  language,  it  is  cruel  treatment.  (Gholston  v. 
Gholston,  31  Ga.  625.)  In  Iowa,  the  cruel  treatment  must  be  such  as 
to  endanger  the  life,  and  the  complaint  must  state  the  specific  facts  of 
inhuman  treatment.  It  is  not  sufficient  to  allege  them  generally. 
(Freerking  v.  Freerking,  19  Iowa,  33.)  Where  a  husband,  in 
presence  of  his  wife,  in  spite  of  her  entreaties,  unmercifully  beats  her 
child,  it  is  cruel  and  inhuman  treatment.  (Bihin  v.  Bihin,  17  Abb. 
Pr.  19.)  But  demeanor  calculated  to  provoke  annoyance,  discontent 
and  disgust,  is  not  sufficient.  (Conklin  v.  Conklin,  17  Abb.  Pr.  20.) 
And  divorces  are  granted  in  such  cases  to  relieve  from  apprehended 
danger  of  bodily  harm.  (Morris  v.  Morris,  14  Cal.  76.)  But  not  when 
such  cruelty  is  caused  by  the  misconduct  of  the  wife.  (Johnson  v. 
Johnson,  14  Cal.  459.)  The  acts  or  character  of  treatment  which  will 
amount  to  extreme  cruelty,  sufficient  to  constitute  a  ground  of  divorce, 
must  in  a  great  measure  depend  on  the  character  of  the  respective 
parties,  and  the  peculiar  circumstances  of  each  case.  Reed  v.  Reed, 
4  Nev.  Rep.  295. 


FOR   DIVORCE.  41  I 

33.  Form,  -with    Claim   for   Alimony. — That  plaintiff  and 
defendant  were  duly  married  and  became  husband  and  wife  in  the 
kingdom  of  Prussia,  in  the  year  1859,  and  immediately  removed  to  the 
State  of  California,  from  which  time  they  continued  to  live  and  cohabit 
together  as  man  and  wife,  in  this  State,  till  November,  1864,  during 
which  time  they  had  born  unto  them  one  child,  a  son  (now  under 
plaintiff's  care),  and  by  their  united  exertions  acquired  property  of  the 
value  of  twenty  thousand  dollars,  which  property  consists  of  money, 
stocks,  notes,  and  other  personal  securities,  now  entirely  in  the  hands 
and  under  the  control  of  defendant;  that  in  the  month  of  November, 
1864,  defendant,  without  cause  or  provocation,  drove  plaintiff  from  his 
house,  and  ever  since  has  and  still  does  refuse  to  live  or  cohabft  with 
plaintiff,  allow  her  to  return  to  his  house  or  to  speak  to  him;  and  since 
the  separation  as  aforesaid,  the  defendant  has  supplied  her  with  $77  per 
month  for  the  maintenance  of  herself  and  child,  but  threatens  to  reduce 
or  wholly  deprive  her  of  this  allowance  at  his  pleasure;  that  she  has  no 
separate  property.     Wherefore  plaintiff  prays  permanent  alimony  in  the 

sum  of dollars  per  month,  to  be  paid  and  secured  to  her  for 

the  separate  maintenance  of  herself  and  child,  and  that  the  custody  of 
said  child  be  awarded  to  her.     This  was  substantially  the  form  of  com- 
plaint in  Galland  ».  Galland,  Cal.  Sup.  Ci..  Jul.  T.,  1869. 

34.  Provocation  of  Violence. — A  divorce  will  not  be  granted 
on  the  ground  of  extreme  cruelty,  where  it  appears  that  the  complaining 
party  has  willfully  provoked  the  violence  or  misconduct  complained  of, 
unless  such  violence  greatly  exceeds  the  provocation.     (Reed  v.  Reed, 
4  Nev.  395.)     Where  the  conduct  of  the  plaintiff  was  not  free   from 
fault,  but  it  was  not  of  such  a  character  as  to  excuse  defendant's  acts  of 
personal  violence,  the  Court  is  authorized  to  grant  a  divorce.     Eiden- 
muller  v.  Eidenmuller,  Cal.  Sup.  Ct.,  Apt.  T.,  1869. 

35.  Single  Act  of  Violence. — A  mere  act  of  violence,  where 
there  is  no  apprehension  of  its  repetition,  and  which  is  the  result  of 
rashness  rather  than  malignity,  does  not  furnish  a  ground  of  divorce  on 
the  ground  of  extreme  cruelty,  because  this  relief  is  not  granted  to 
punish  the  party  guilty  of  misconduct,  but  to  relieve  the  other  party 
from  future  suffering  or  violence.     Reed  v.  Reed,  4  Nev.  Rep.  395. 


412  FORMS   Of    COMPLAINTS. 

No.  501. 

v.    On  the  Ground  of  Fraud. 

[TITLE.] 
i 
The  plaintiff  complains,  and  alleges  : 

I.  and  II.  \_Allege  marriage  and  residence  as  before^ 

III.  That  for  the  purpose  of  inducing  the  plaintiff  to 
consent  to  the  said  marriage,  the  defendant  falsely  and 
fraudulently  represented  that  she  was  physically  com- 
petent to  marry  the  plaintiff,  and  concealed  from  the 
plaintiff  her  real  physical  condition. 

IV.  That  the  defendant  was  not  at  the  time  physic- 
ally competent  to  marry  the  plaintiff  but  was  at  the  time 
of  the  said  marriage  in  a  state  of  pregnancy  by  some 
other  man  than  the  plaintiff. 

V.  That  the  plaintiff  was  induced  to  consent  to  the 
said  marriage  by  the  said  representations,  which  he  be- 
lieved at  the  time  of  his  said  marriage  to  be  true,  and 
that  if  the  said  representations  had  not  been  made  to 
him,  and  said  concealment  had  not  been  practiced,  he 
would  never  have  consented  to  the  said  marriage. 

VI.  That    immediately  upon    his  discovery  of   the 
falsehood  of  said  representations,  to  wit:   on  the 

day  of ,  1 8 .  . ,  the  plaintiff  ceased  to  cohabit 

with   the   defendant,   and    has    never   since   cohabited 

with  her. 

{Demand  of  Judgment.  \ 


36.  Absence  of  Former  Husband. — Where,  after  a  husband 
has  been  absent  five  years,  and  not  heard  from,  and  the  wife  in  good 
faith,  supposing  him  dead,  marries  another,  the  marriage  is  voidable 
only,  and  cannot  be  adjudged  void  at  the  instance  of  a  third  party. 


.  FOR   DIVORCE.  413 

Crosbey    v.   McKinney,    30    Barb.    47;    see   Griffin    v.   Banks,    24 
How.  Pr.  213. 

37.  Alimony. — In  an  action  by  a  man,  to  obtain  a  decree  de- 
claring void  a  marriage,  for  the  reason  that  the  defendant  at  the  time  of 
such  marriage  had  a  living  husband,  the  fact  being  admitted,  the  Court 
will  not  grant  the  defendant  alimony  and  a  counsel  fee;  because  she  is 
admittedly  not  the  wife  of  plaintiff.     Appleton  v.  Warner,  51  Barb.  270. 

38.  Ante-Nuptial  Pregnancy. — Ante-nuptial  pregnancy  by  a 
stranger  is  a  fraud  going  to  the  \»ry  substance  of  the  contract,  and 
vitiates  abinitio.     (Baker  v.  Baker,  13    Cal.  87.)    To  sustain  an*action 
of  divorce  on  the  ground  that  the  woman  was  pregnant  at  the  time  of 
the  marriage,  it  is  not  necessary  to  prove  express  representations  on  her 
part  that  she  was  chaste.     Donovan  v.  Donovan,  9  Allen  (Mass.)  140. 

39.  Death  of  Former  Wife. — Where  the  husband  had,  before 
marriage  to  his  present  wife,  represented  to  her  that  his  former  wife 
was  dead,  when  in  fact  she  was  living,  he  having  been  divorced  from 
her,  these  representations,  even  if  fraudulent,  are  not  fraud  in  a  material 
matter  or  thing,  within  the  legitimate  purposes  of  marriage.     Clarke 
v.  Clarke,  n  Abb.  Pr.  228. 

40.  Frauds   which.  Invalidate. — Those  frauds  which  inval- 
idate a  marriage  are  usually  such  as  negative  any  consent  to  be  mar- 
ried at  all,  and  are  commonly  duress,  surprise,  or  stratagem  in  procuring 
the  marriage,  and  the  fraud  must  be  nearly  if  not  actually  coincident 
with  the  marriage.     (Leavitt  v.  Leavitt,  13  Mich.  452.)     So  of  a  mar- 
riage ^procured  by  abduction,  terror,  or  fraud.     (Ferlat  v.  Gojon,  Hopk. 
478.)     Or  by  fraud  and  force.     Sloan  v.  Kane,  10  How.  Pr.  66. 


No.  502. 

vi.    On  the  Ground  of  Habitual  Drunkenness. 
[TITLE.] 
The  plaintiff  complains,  and  alleges: 

I.  \_Allege  marriage  as  in  Form  No.  497.] 

II.  \_Allege  residence  as  in  Form  No.  497.] 


414  FORMS   OF     COMPLAINTS. 

III.  That  the  defendant,  disregarding  his  duties  as  a 
husband  towar.ds  the  plaintiff,  has  been  guilty  of  habitual 
drunkenness  for years  last  past. 

[Demand  of  Judgment.'] 


41.  Habitual  Intemperance  Defined. — If  there  be  a  habit  of 
drinking  to  excess,  to  such  a  decree  as  to  disqualify  the  party  from 
attending  to  his  business  during  the  principal  portion  of  the  time  usually 
devoted  to  business,  it  is  habitual  intemperance.  (Mahone  v.  Mahone, 
19  Cal.  626.)  A  single  act  of  drunkenness  and  indecency  of  the  wife 
is  not  such  an  indignity  as  will  render  the  condition  of  the  husband 
intolerable,  within  the  meaning  of  the  Statute  of  Missouri.  (Kempfv. 
Kempf,  34  Mo.  211.)  Habitual  drunkenness,  a  series  of  annoyances, 
and  extraordinary  conduct,  do  not  constitute  legal  cruelty,  but  in  addi- 
tion to  these,  the  willful  communication  of  a  venereal  disease  to  the  wife 
is  cruelty.  Brown  v.  Brown,  Law  Rep.  i  P.  &  D.  46;  Boardman  v. 
Boardman,  Id.  237. 


No.  503. 

vii.    On  the  Ground  of  Lunacy. 

[TITLE.] 

*  . 
,    The  plaintiff  complains,  and  alleges: 

I.  \_Allege  marriage  as  in  Form  No.  497.] 

II.  [Allege  residence  as  in  Form  No.  497.] 

III.  That   at  the  time  of  such  marriage  [she]   he 
was  a  lunatic,  and  incapable  of  contracting  a  marriage, 
and  has  been  ever  since  [or  slate  the  duration^. 

IV.  That  the  defendant  is  now  perfectly  recovered 
of  his  [her]  lunacy  aforesaid,  and  restored  to  his  [her] 
right  mind,  memory,  and  understanding,  and  has  been 


FOR    DIVORCE.  415 

for  about months  last  past,  and  that  since  his 

[her]  restoration  to  a  sound  state  of  mind  as  aforesaid, 
the  plaintiff  has  not  cohabited  with  the  said  defendant. 

[Demand  of  Judgment. \ 


42.  Return  to  Reason. — Where  a  person,  insane  at  the  time 
of  her  marriage,  after  return  to  reason  refused  to  ratify  or  consummate 
it,  and  filed  her  bill  to  annul  it,  the  Court  decreed  the  marriage  null  and 
void.  Wightman  v,  Wightman,  4  Johns,  Ch.  343. 


No.  504. 

viii.    On  the  Ground  of  Willful  Neglect. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  marriage   as  in  Form  No.  497.] 

II.  \Allege  residence  as  in  Form  No.  497.] 

III.  That   the    defendant,  for   more   than 

years   last  past,  has  willfully  neglected  to  provide  for 
plaintiff  the    common   necessaries  of  life,   having   the 
ability  so  to  do,  and  has  compelled  plaintiff  to  live  upon 
the  charity  of  friends,  notwithstanding  he  is  abundantly 
able  to  support  her,  and  is  worth,  as  this  plaintiff  is  in- 
formed and  believes,  about  the  sum  of dollars, 

and  is  in  the  constant  receipt  of  wages  sufficient  for 
their  joint  support  from  his  daily  labor,  to  wit,  about 

dollars  per  month. 

[Demand  of  Judgment, ,] 
43.    Ability  to  Provide. — It  must  appear  that  the  husband  was 


41 6  FORMS    OF     COMPLAINTS. 

owner  of  sufficient  property  to  provide,  but  neglected  to  do  so.     Wash- 
burne  v.  Washburne,  9  Cal.  476. 

44.  Charge  of  Failure  to    Support. — It   must  affirmatively 
appear  in  the  complaint,  that  the  husband  was  the  owner  of  property 
sufficient  to  provide  for  the  necessaries  of  life,  and  neglected  ,so  to  do, 
where  the  application  is  made  on  the  ground  of  the  willful  neglect  of 
the  husband,  for  the  period  of  thfee  years,  to  provide  the  common 
necessaries  of  life,  having  the  ability  to  provide  the  same.     Washburne 
v.  Washburne,  9  Cal.  476. 

45.  Willful  Neglect. — Willful  neglect  for  the  period  of  three 
years,  whether  accompanied  with  desertion  or  otherwise,  is  a  distinct 
ground  of  divorce.     (Washburne  v.  Washburne,  9   Cal.   475.)     The 
neglect  must  be  such  as  leaves  the  wife  destitute  of  the  common  neces- 
saries of  life.     Id. 


.  505. 

ix.    On  the  Ground  of  Physical  Incapacity. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  \_Allege  marriage  as  in  Form  No.  497.] 

II.  \Allege  residence  as  in  Form  No.  497.] 

III.  That  immediately  after  said  marriage  took  place, 
the  plaintiff  discovered  that  the  said  defendant  A.  B.,  at 
the  time  of  her   [his]   marriage  with  the   plaintiff  as 
aforesaid,  was  physically  incapable  of  entering  into  the 
marriage  state;  that  the  \_etc.,  stating  the  cause  of  siich 
incapacity^. 

IV.  That  the  physical  incapacity  of  the  said  A.  B., 
arising  from  her  diseased  condition  as  aforesaid,  was 
well  known  to  the  defendant  at  the  time  of  her  [his] 
intermarriage  with  the  plaintiff  as  aforesaid,  but  was 
wholly  unknown  to  the  plaintiff. 


FOR    DIVORCE.  417 

V.  That  the  plaintiff  has  been  informed  and  believes 
that  the  said  physical  incapacity  of  the  said  A.  B.  still 
exists,  and  is  incurable,  and  so  charges  the  fact  to  be. 

Wherefore  the  plaintiff  demands  judgment,  that  the 
marriage  between  him  [her]  and  the  said  defendant  may 
be  dissolved,  and  a  divorce  decreed,  according  to  the 
statute  in  such  case  made  and  provided. 


46.  Impotence. — To  authorize  a  sentence  of  nullity  on  the  ground 
of  impotence,  the  existence  of  incapacity  at  the  time  of  marriage,  its 
continuance,  and  that  it  is  incurable,  must  be  shown,  i  Chitt.  M.J.  375 ; 
Law.  of  H.  &  W.  1 6;  i  Hagg.  Ecc.  523;  2  Lees.  Ecc.  Cas.  580;  i 
fleck's  M.J.  68;  4  Partida,  tit.  8;  Van  Leeuw.  87;  Davenbagh  v. 
Davenbagh,  5  Paige,  554. 


CHAPTER  IV. 

FRAUD. 

No.  506. 

\.    For  Rescission  of  Contract,  on  the  Ground  of  Fraud. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  on  the day  of ,  18 . . ,  the 

plaintiff  was  the  owner  of  a  farm  situated  in  the  Town 
of ,  County  of [describing  it\. 

II.  That  the  plaintiff  then  was  and  ever  since  has 
been  old,  infirm,  and  blind,  and  wholly  incapacitated  from 
attending  to  business,  and  the  defendants  on  that  day, 

27 


41 8  FORMS    OF    COMPLAINTS. 

fraudulently  taking  advantage  of  the  plaintiff's  said  inca- 
pacity, procured  him  to  sign  a  certain  writing,  without 
paying  him  any  consideration  therefor,  and  which  writ- 
ing they  falsely  and  fraudulently  represented  to  be  a 
mere  matter  of  form. 

III.  That  on  the day  of ,  1 8 .  . ,  the 

plaintiff  demanded  possession   of  said   writing  of  the 
defendants,  or  information  as  to  the  contents  thereof, 
but  the  defendants  refused  to  surrender  the  same,  or  to 
give  him  any  information  concerning  the  same. 

IV.  That  the  plaintiff  is  informed  and  believes  that 
the  said  writing  is  under  seal,  and  is  a  deed  of  said 
premises,    and    conveys   the   same    or    some    interest 
therein  to  the  defendants;  and  that  they  intend  to  use 
the  same  for  their  own  benefit,  and  to  the  prejudice  of 
the  plaintiff. 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  the  said  writing  is  void. 

2.  That  the  defendants  produce  the  said  writing,  and 
deliver  it  up  to  be  canceled. 

3.  For  costs  of  this  action. 

NOTE. — This  form  is  in  substance  from  Abbotts'  Forms. 

1.  Act  of  Agent. — Fraud  committed  through  an  agent  is  well 
stated  in  pleading  as  that  of  the  principal.  If  this  were  otherwise,  and 
it  appeared  at  the  trial  to  be  that  of  an  agent  without  any  participation 
of  his  principal,  the  variance  is  the  subject  of  amendment,  and  will  be 
disregarded  upon  appeal.  (Curtis  v.  Fay,  37  Barb.  64;  Bennett  v. 
Judson,  21  N.Y,  238.)  Equity  will  relieve,  where  falsehood  or  fraud 
is  practised,  whether  it  be  by  the  principal  or  the  agent.  (Mason 
•v.  Crosby,  i  Woodb.  &  M.  342;  Smith  v.  Babcock,  2  Id.  246, 
293.)  Even  when  the  false  representations  are  made  by  a  stranger, 


FOR    FRAUD.  419 

it  is  deemed  as  if  made  by  the  seller.  (Crocker  v.  Lewis,  3  Sumn.  i.) 
In  such  case,  the  relief  granted  must  be  on  the  ground  of  mistake. 
(Fisher  v.  Boody,  i  Curt.  C.  Ci.  206.)  It  is  a  fraud  for  an  agent  to 
avail  himself  of  his  confidential  relations  to  create  an  interest  adverse 
to  that  of  his  principal  in  the  transaction,  and  that  fraud  creates  a  trust 
even  when  the  agency  must  be  proved  only  by  parol.  (i  Russ.  & 
Mylne,  53;  11  Bligh,  397,  418;  contra,  \  Eden,  515;  S.C.,  i  Cox,  15; 
4  East.  477;  4  Russ.  423;  Jenkens  v.  Eldridge,  3  Story  C.  Ct.  18.)  In 
alleging  fraud  committed  by  an  agent,  it  is  the  better  practice  to  state 
the  fact  that  the  defendant  acted  by  an  agent.  See,  also,  2  Chit.  PL  117; 
i  Wentw.  345. 

2.  Act  of  Legislature — Fraud. — An  act  of  the  Legislature  is 
not  subject  to  attack  on  the  ground  of  fraud,  and  it  is  sufficient  on  this 
point  to  refer  to  (Sherman  v.  Story,  30  Cal.  266;  Oroville  and  Vir- 
ginia City  Railroad  Company  v.  the  Supervisors  of  Plumas  County,  Cal. 
Sup.  Ct.,  April  T.,  1869.)     Any  attempts  to  deceive  persons  entrusted 
with  the  high  functions  of  legislation,  by  secret  combinations,  or  to 
create  or  bring  into  operation  undue  influences  of  any  kind,  have  all 
the  injurious  effects  of  a  direct  fraud  on  the  public.     (Marshall  v .  Bal- 
timore and  Ohio  R.R.  Co.,  16  How.  U.S.  334.)    All  persons  interested 
in  the  passage  of  an  act  have  an  undoubted  right,  either  in  person,  or 
by  counsel,  to  urge  their  claims  and  arguments,  before  legislative  com- 
mittees, as  well  as  in  courts  of  justice;  but  a  hired  advocate  or  agent, 
assuming  to  act  in  a  different  character,  is  practicing  deceit  on  the  Leg- 
islature.    See,  Miles  v.  Thome,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

3.  Act  of  Attorney. — If  a  sale  of  lands  under  a  power  of  attorney 
procured  through  fraud  be  set  aside  as  fraudulent  and  void  ab  initio, 
the  fraudulent  vendee  is  not  entitled  to  a  decree  against  the  vendor  for 
restitution  of  a  part  of  the  purchase  money  paid  to  the  attorney  who 
was  privy  to  the  fraud.     Sanchez  v.  McMahon,  35  Cal.  218. 

4.  Actual  and  Intentional   Fraud. — Where  a  bill   charges 
actual  and  intentional  fraud,  and  prays  for  relief  on  that  ground,  the 
complainant  cannot,  under  the  prayer  for  general  relief,  rely  on  circum- 
stances which  may  amount  to  a  case  for  relief,  under  a  distinct  head  of 
equity,  although  those  circumstances  substantially  appear  in  the  bill,  but 
are  charged  in  aid  of  the  charge  of  actual  fraud.     (Eyre  v.  Potter,  1 5 
How.  U.S.  42.)     Rule  is  applied  to  purchase  from  widow  by  her  stepson. 
If  a  bill  charges  fraud  as  the  ground  of  relief,  fraud  must  be  proved. 
The  proof  of  other  facts,  though  such  as  would  be  sufficient,  under 


42O  FORMS    OF     COMPLAINTS. 

some  circumstances,  to  constitute  a  claim  for  relief  under  another  head 
of  equity,  will  not  prevent  the  bill  from  being  dismissed.  Fisher  v. 
Brady,  i  Curtis  C.  Ct.  206. 

5.  Assignment. — A  cause  of  action  for  damages  for  procuring  a 
sale  of  goods  by  false  representations  is  assignable;  and  the  assignee 
may  sue  thereon  without  joining  the  assignor.     Johnson  v.  Bennett, 
5  Abb.  Pr.  (N.S.)  331;  Allen  ».  Brown,  51  Barb.  86. 

6.  Consideration. — Mere  inadequacy  of  consideration,  unless  ex- 
tremely gross,  does  not  per  se  prove  fraud  or  mistake.     (Eyre  v.  Potter, 
15  Hoiv.  U.S.  42;  Wright  v.  Stanard,  2  Brock.  Marsh.  311;  this  sub- 
ject considered  in  Vint  v.  King,  2  Am.  Laiv  Reg.  712.)    The  insert- 
ing in  the  deed  of  a  consideration  less  than  the  true  consideration  is  not 
of  itself  a  fraud,  if  a  fair  amount  was  paid.     (Knowles  v.  Case,  2 
Cranch  C.  Ct.  576.)     But  an  entire  failure  of  consideration  is  often 
sufficient  to  rescind  a  contract  in  equity,  although  mere  inadequacy  of 
consideration  is  not.     (i  Grant  Ch.  367;  2  Ves.  155;  i  Met.    180;  I 
Story  Eq.  Jur.  244;  i  Knapp  P.C.  73;  i  Brown  Ch.  Ct.  App.  558; 
i   Cox,  383;  8    Ves.  133;   Warner  v.  Daniels,  i    Woodf.  &  M.  90.) 
Where  purchaser  does   not  receive  the   title   which   the  deed   pur- 
ports to  convey,  and  he  goes  into  and  retains  possession  under  the  deed, 
and  the  failure  of  title  goes  to  the  entire  consideration  paid,  the  remedy 
is  by  a  rescisson  of  the  contract,  alleging  a  paramount  title  in  another, 
and  offering  to  re-deliver  possession  and   account  for  the  rents  and 
profits.     (Walker  v.  Sedgwick,  8   Cal.  398.)     A  creditor  who  attacks 
a  sale  on  the  ground  of  fraud  as  to  him,  admits  the  validity  of  the  sale 
between  the  parties  thereto,  but  seeks  the  benefit  of  the  statute  as  to 
himself,  and  must  show  fraud.     Thornton  v.  Hook,  36  Cal.  223. 

7.  Contract  of  Agent. — An  action   ex-contractu  does  not   lie 
against  one  who  fraudulently  represents  himself  as  the  agent  of  another, 
and   makes  a  contract   in  his  name.     The   remedy  is  an  action  for 
decei}.  Noyes  v.  Loring,  55  Me.  408. 

8.  Contract  of  Sale. — A  party  who  sues  to  rescind  a  contract 
for  the  purchase  of  land,  on  the  ground  of  fraud,  must  in  his  bill  offer 
to  return  the  land  purchased.     Murphy  v.  McVicker,  4  McLean,  252. 

9.  Debts  Fraudulently  Contracted. — In  case  of  a  debt  fraudu- 
lently contracted  by  a  partnership  firm  by  one  member  alone,  made 
with  innocent  third  parties,  while  all  the  members  will  be  bound  in 


FOR    FRAUD.  421 

an  action  brought  on  the  contract,  or  to  recover  the  property  so  fraudu- 
lently obtained,  yet  the  liability  to  an  action  for  the  fraud,  which  is 
essentially  different  and  involves  moral  turpitude, Ms  limited  to  the  part- 
ner committing  the  same,  unless  the  others  assented  to  the  fraud  or 
ratified  it,  or  retained  its  fruits  with  knowledge  of  the  fraud.  Stewart 
v.  Levy,  36  Cal.  159. 

10.  Deceit,  how  Alleged. — In  alleging  deceit,  the  averment 
that  the  defendant  falsely  and  fraudulently  represented,  etc.,  is  sufficient, 
as  an  allegation  of  his  knowledge,  that  his  representations  were  false. 
(2  Johns.  550.)     But  if  this  were  not  the  case,  an  objection  to  a  plead- 
ing for  such  defect,  if  not  taken  at  the  trial,  cannot  be  raised  on  appeal 
from  the  judgment.     Thomas  v.  Bebee,  25  N.I'.  244. 

11.  Deed  Deposited  -with  Third  Person. — Where  a  bill  in 
equity  is  filed  to  cancel  a  deed  which  avers  that  the  grantor  deposited 
the  same  with  a  third  person,  to  be  by  him  delivered  to  the  grantee 
upon  the  order  of  the  grantor  or  his  agent,  and  that  before  the  agent 
gave  the  order  the  grantor  directed  the  third  person  not  to  deliver  the 
deed,  but  does  not  aver  that  the  third  person  intends  or  threatens  to 
deliver  the  deed  to  the  grantee,  or  that  he  will  disobey  the  instructions 
of  the  grantor,  the  bill  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action.     (Fitch  v.  Bunch,  30  Cal.  208.)     If  a  suit  to  rescind  a  deed 
is  brought  after  a  considerable  lapse  of  time,  and  after  the  plaintiff  has 
exercised  the  powers  of  an  owner  over  the  property,  so  as  to  change  its 
character  or  value  materially,  the  bill  must  state  sufficient  reasons  for 
the  delay;  and  those  reasons  must  be  made  out  in  proof.     (Fisher  v. 
Boody,  i   Curtis  C  Ct.  205.)     For  a  complaint  to  set  aside  a  deed  of 
minor,  on  his  coming  of  age,  see  Voorhies  v.  Voorhies,  24  Barb.  159. 

12.  Demand. — A    demand  for  the    price  of  goods  sold  is   not 
necessary  to  maintain  an  action  against  a  debtor  for  fraudulently  pur- 
chasing the  same.     Payment,  though  it  would  satisfy  the  debt,  would 
not  remove  the  part  of  the  fraud  which  is  the  gravamen  of  the  action. 
Stewart  v.  Levy,  36  Cal.  159. 

13.  Facts  must  be  Alleged. — A  bill  for  relief  upon  the  ground 
of  fraud  must  be  specific  in  stating  the  facts  which  constitute  the  fraud. 
It  is  not  sufficient  to  charge  fraud  in  general  terms.     (Kent  v.  Snyder, 
30  Cal.   666;   Castle  v.  Bader,  23  Id.  75;  Moore  v.  Greene,  29  How. 
Pr.  69;  Beaubien  v.  Beaubien,  23  Id.  190.)     And  without  the*  aver- 
ment of  such  facts,  the  expressions  "fraudulently,"  "deceitfully,"  "by 


422  FORMS    OF    COMPLAINTS. 

mistake,"  will  not  bring  the  case  within  the  equitable  jurisdiction,  even 
on  a  demurrer  to  the  bill.  (Maginac  v.  Thompson,  2  Wall.  jr.  C.  Ct. 
209;  S.C.,  15  How.  U.S.  281.)  In  imputing  fraud,  the  term  itself  need 
not  be  used,  if  the  facts  stated  amount  to  it.  (Attorney-General  v.  Cor- 
poration of  Poole,  4 Myl  6* C. (i 8 Eng.  Ch.~)  1 7 ;  S.C., 8 LJ. (N.S.)ch. 27.) 
No  allegation  of  fraud  is  necessary  in  the  complaint  in  an  action  founded 
on  a  warranty  deed.  Any  allegations  oT  fraud  in  such  complaint,  when 
not  essential,  may  be  disregarded.  (Quintard  v.  Newton,  5  Rob.  72.) 
In  case  of  a  warranty,  the  scienter  need  not  be  alleged.  (Holman  v. 
Dord,  12  Barb.  336.)  But  the  fraud  or  deceit  must  be  substantially 
alleged.  Everston  v.  Miles,  6  Johns.  138;  Zabriskie  v.  Smith,  3 
Kern.  322;  Cazeaux  v.  Mali,  25  Barb.  578. 

14.  False   Representations. — The  essential  allegations   in  an 
action  to  recover  damages  for  false  and  fraudulent  representations,  are: 
First,  That  they  were  false.     Second,  That  defendant  knew  them  to  be 
false.     Third,  That  he  made  them  with  intent  to  defraud  the  plaintiff. 
These  facts  should  be  clearly  stated.     (Sharp  v.  Mayor  of  N.  Y.,  2  5  How. 
Pr.  389;  Addington  v.  Allen,  1 1  Wend.  374;  reversing  S.C.,  7  Id.  9;  Wells 
v.  Jewett,  1 1  How.  Pr.  242.)     In  an  action  on  the  case  for  fraud  in  the 
sale  of  a  lot  of  land,  a  declaration  sufficiently  alleges  the  fraud  which 
states  that  the  defendant  induced  the  plaintiff  to  purchase  by  fraudu- 
lently misrepresenting,  in  the  course  of  a  conversation  between  the 
plaintiff  and  the  defendant  in  regard  to  the  sale  of  the  land,  "that  there 
were  three  thousand  spruce  logs  on  the  premises  (meaning  that  there 
were   spruce   trees  growing  thereon  that  would  cut  and  make  three 
thousand  spruce  logs  of  the  usual  and  customary  size  and  quality)." 
(Whitton  v.  Goddard,  36  Vermont,  730.)     Where  a  complaint  averred 
a  fraudulent  agreement,  and  alleged  that  the  representations  to  the 
plaintiffs,  and  the  purchase  made  of  the  plaintiffs  on  such  representa- 
tion, were  made  in  pursuance  of  such  fraudulent  agreement,  and  were 
a  device  and  contrivance,  the  complaint  was  held  sufficient.     Ballard  v. 
Lock  wood,  i  Daly,  158. 

15.  Fraud  Defined. — Any  material  misrepresentation  of  a  mate- 
rial fact  as  to  which  one  party  places  a  known  trust  and  confidence  in 
the  other,  and  by  which  the  confiding  party  is  actually  misled  to  his  in- 
jury, will  induce  a  court  of  chancery  to  set  aside  a  conveyance.     (Smith 
v.  Richards,  13  Pet.  26.)     Fraud  in  the  use  of  a  written  instrument  is  as 
much  ground  for  the  interposition  of  equity  as  fraud  in  its  creation. 
Pierce  v.  Robinson,  1 3  Cal.  1 1 6. 


FOR    FRAUD.  423 

16.  Fraud,  when  Consummated. — The  fraudulent  intent  of 
a  party  to  procure  goods  without  payment  is  consummated  when  the  pos- 
session of  the  goods  is  obtained  without  payment  on  delivery.     Stewart 
v.  Levy,  36  Cal.  159. 

17.  Fraud  must  be  Alleged. — The  burden  of  charging,  as  well 
as  of  proving  fraud,  is  on  the  party  alleging  it.     Mere  conclusions  will  not 
avail.     (Butler  v.  Viele,  44  Barb.  166.)     A  general  allegation  that  the 
grantee  procured  the  deed  by  false  and  fraudulent  representations  and 
practices,  and  by  undue  and  improper  influence,  is  insufficient,  without 
stating  the  nature  of  the  alleged  representations.     (Id.)     Where  upon 
the  facts  the  law  adjudges  fraud,  still  it  is  not  therefore  indispensable 
that  the  complaint  should  in  terms  allege  fraud,  and  its  omission  does 
not  substantially  vary  the  cause  of  action.     Sharp  v.  Mayor  of  N.Y.,  40 
Barb.  256. 

18.  Fraudulent  Deed. — C.  fraudulently  obtained  a  deed  of  D., 
conveying  land  in  Michigan,  and  had  said  deed  recorded  in  said  State. 
C.  then  granted  said  lands  to  third  parties.     Held,  that  even  under  this 
fraud,  courts  of  another  state  could  not  undertake  to  pronounce  these 
recorded  deeds  nullities.    But  the  parties  being  before  the  Court,  and  there 
being  no  attempt,  to  prove  that  the  last  mentioned  grantees  were  pur- 
chasers for  a  valuable  consideration,  the  Court  could  compel  said  grantees 
to  execute  to  S.  a  release  of  all  claim  acquired  through  the  deed  from 
him,    under   penalty   for  attachment  of  contempt.     If  said   grantees 
should  go  beyond  the  jurisdiction,  the  Court  should  appoint  a  special 
commissioner  to   make   the   conveyance   in  their   stead.     (Cooley  v. 
Scarlett,  38  ///.  316.)     In  an  action  to  set  aside  as  fraudulent  a  convey- 
ance of  land,  so  much  of  the  complaint  as  sets  out  in  detail  the  incep- 
tive steps  which  culminated  in  the  alleged  fraudulent  conveyance  is  not 
irrelevant  or  redundant  matter.     Perkins  v.  Center  35  Cal.  713. 

19.  Fraudulent   Intent. — That    fraudulent    intent    should    be 
averred  in  pleading  a  charge  of  fraud,  see  (Moss  v*  Riddle,  5  Crancht 
351;  compare  Fenwick  v.  Grimes,  5  Cranch  C.  Ct.  439.)      When  the 
facts  relied    upon  as  constituting    the    fraud  must    be  pleaded,    see 
(McClintick  v.  Johnston,  i  McLean,  414;    Lathrop  v.  Stewart,   6  Id. 
630.)     A  party  seeking  relief  from  the  payment  of  purchase-money,  on 
the  ground  of  fraud,  must  distinctly  allege  it  in  the  bill.     Noonan  v. 
Lee,  2  Black.  U.S.  499. 

20.  Fraudulent  Note. — When  a  party  has  given  a  promissory 


424  FORMS    OF    COMPLAINTS. 

note,  and  the  payee  assigns  the  note,  without  recourse,  after  maturity, 
and  suit  is  brought  upon  the  note  by  the  assignee,  the  maker  then  files 
his  bill  against  the  assignor  and  assignee,  alleging  fraud  in  obtaining  the 
note,  and  praying  for  an  injunction,  and  that  the  note  be  canceled : 
Held,  that  the  case  was  a  proper  one  for  equitable  relief,  and  the  maker 
had  the  right  to  have  the  note  canceled,  so  as  to  prevent  future  litiga- 
tion. (Domingo  v.  Getman,  9  Cal.  97.)  For  a  form  of  complaint  to 
cancel  a  note  or  bill  in  defendant's  possession,  see  (Gardner  v.  Lee's 
Bk.  ii  Barb.  558.)  For  a  complaint  seeking  to  avoid  payments  of 
notes  given  by  a  company  never  duly  organized,  see  (Jones  v.  Dana, 
24  Barb.  395.)  To  cancel  note  or  bill  in  defendant's  possession,  see 
Gardner  v.  Lee's  Bank,  n  Barb.  558. 

2L  Fraudulent  Representations. — A  complaint  alleged  that 
the  plaintiff  was  the  keeper  of  a  livery  stable,  and  as  such  it  was  his 
business  to  keep  horses  for  hire,  etc. ;  that  he  kept  in  his  stable  two  val- 
uable horses  of  his  own,  etc. ;  that  the  defendant,  knowing  these  facts, 
brought  to  the  plaintiff  a  horse  which  had  the  distemper,  representing 
that  the  horse  had  recovered  and  could  not  communicate  the  disease; 
that  the  plaintiff  being  ignorant  of  the  condition  of  the  horse  received 
him  into  his  stable,  relying  on  the  defendant's  representations;  that  the 
defendant  knew  that  the  disease  was  then  in  the  contagious  stage,  and 
that  the  plaintiff's  two  horses  took  the  disease.  Held,  that  the  com- 
plaint was  not  bad  for  not  alleging  that  the  injury  occurred  without 
fault  or  negligence  on  the  part  of  the  plaintiff,  or  that  the  defendant  did 
not  in  his  business  receive  sick  and  diseased  horses  for  keeping.  Ful- 
ler v.  Wyckoff,  25  Ind.  321. 

22.  Fraudulent  Sale  of  Mine. — If  a  complaint  avers  that 
the  defendant,  by  false  representation  as  to  the  value  of  mines,  induced 
the  plaintiff  to  purchase  the  same,  and  pay  a  sum  of  money  therefor, 
and  that  defendant  gave  plaintiff  a  deed  therefor,  and  received  the  con- 
sideration, and  also  claims  general  damages  exceeding  the  consideration, 
and  avers  an  offer  to  redeem  the  deed,  it  is  an  action,  in  common  law 
parlance,  ex  delicto,  and  not  ex  contractu,  and  the  averment  of  an  offer  to 
return  the  deed  is  not  an  offer  of  a  rescission  of  the  contract,  nor  an 
offer  to  rescind.  (Ahrens  v.  Adler,  33  Cal.  608.)  If  the  plaintiff  in 
his  complaint  claims  damages  for  a  fraudulent  sale  of  mines  to  him, 
and  avers  an  offer  to  return  the  deed  given  to  him,  an  amendment 
striking  out  the  offer  to  return  the  deed  does  not  change  the  issues 
tendered  in  the  complaint.  (Ahrens  v.  Adler,  33  Cal.  608.)  Plaintiff 


FOR    FRAUD.  425 

and  defendant  were  partners  in  the  purchase  of  mining  claims.  De- 
fendant was  the  active  partner,  and  acquainted  with  the  value  of  a 
certain  claim  owned  by  the  firm,  plaintiff  being  ignorant  of  its  value. 
Plaintiff  sold  his  interest  in  this  claim  to  defendant  for  greatly  less  than 
its  value.  Held,  that  in  a  suit  by  plaintiff  against  defendant,  'to  set  aside 
this  sale  for  fraud,  and  for  an  account,  etc.,  an  averment  that  defendant 
is  indebted  to  plaintiff  on  an  account  in  a  sum  greater  than  that  paid  by 
defendant  for  the  mining,  is  in  effect  an  offer  to  place  defendant  in  statu 
quo.  Watts  v.  White,  13  Cal.  321. 

23.  Guardian's    Sale. — For  complaints  to  set  aside  guardian's 
sale  as  fraudulent,  see  Clark  v.  Underwood,  17  Barb.  202. 

24.  Insufficient    Averments. — Where  the  complaint  alleges 
"  that  by  virtue  of  the  covenants  of  said  deed,  said  B.  M.  covenanted 
and  agreed  that  she  had  title  to  said  premises,  and  the  right  to  convey 
the  same,  and  that  she  had  not  prior  thereto  conveyed  the  same  to  any 
person  except  to  said  plaintiff  and  W.,"  and  that  relying  solely  upon 
the  said  representations  "  made  by  B.  M.,  that  she  was  the  owner  of  the 
premises,  they  accepted  and  received  the  deed  in  part  payment  of  a 
pre-existing  debt,"  and  that  "by  means  of  which  false  and  deceptive 
repiesentations"  they  have  suffered  damages  in  the  sum  of,  etc.,  it  was 
held  ambiguous  and  uncertain.     Lawrence  v.  Montgomery  and  Evoy, 
Adm'rs,  Cal.  Sup.  Ct.,  Apr.  T.,  1869. 

25.  Jurisdiction. — Courts  of  law  and   equity  have   concurrent 
jurisdiction  of  fraud  in  many  cases;    (Swayze  v.  Burke,  12   Pet.  n; 
Rhoades  v.  Selin.  4  Wash.  C.  Ct.  715;  Sabury  v.  Field,  i  Me  All.  60;) 
e.g.,  to  enforce  a  bond  cancelled  by  the  obligee  in  consequence  of  fraud 
practiced  by  the  obligor.     (United  States  v.  Spaulding,  2  Mas.  478.) 
On  account  of  the  difficulties  in  adjusting  the  rights  and  equities  of  the 
parties  at  law,  a  court  of  law  refuses  to  open  the  question  of  fraud,  in  the 
consideration,  or  in  the  transaction  out  of  which   the   consideration 
arises,  in  a  suit  upon  a  sealed  instrument.     (Hartshorn  v.  Day,  19  How. 
U.S.  211 ;  overruling  Day  v.  New  Eng.  Car  Spring  Co.,  3  Liv.  Law. 
Mag.  44.)     Fraud  is  a  well  recognized  ground  of  equitable  jurisdiction. 
(Atkins  v.  Dick,  14  Pet.  114;  Dunlop  v.  Stetson,  4  Mas.  349;    Briggs 
v.  French,  i  Sumn.  504;  Hubbard  v.  Tinner,  2  McLean,  519.)     In 
both  equity  and  law,  fraud  and  injury  must  concur  to  furnish  ground 
for  judicial  action.      (4  Pel.  297;  6  Id.  716;  Clarke  v.  White,  12  Pet. 
178.)     Courts  of  equity  may  direct  the  cancelment  of  a  contract  for 


426  FORMS    OF     COMPLAINTS. 

raud  or  mistake,  but  they  cannot  alter  the  contract.     Brooks  v.  Stolley, 

3  McLean,  523. 

• 

26.  Misapplication  of  Money. — All  persons  in  interest  must 
oe  joined  in  a  suit  against  a  party  for  misapplication  of  money  collected 
by  him.     (Harris  v.  Schultz,  40  Barb.  315.)     A  charge  of  embezzle- 
ment, and  praying  that  defendant  be  adjudged  guilty  of  fraud,  and  for 
judgment  and  execution  against  his  person  and  property,  is  insufficient 
to  sustain  a  verdict  convicting  the  defendant  of  fraud.       (Porter  v. 
Hermann,   8   Cal.   623.)      The    facts  which   constitute   the   fiduciary 
capacity,  its  nature  and  extent,  should  be  stated  in  direct  and  positive 
terms.     It  is  necessary,  in  such  a  case,  to  charge  not  only  that  defend- 
ant received  the  money  as  agent,  but  that  he  converted  it  in  the  course 
of  his  employment  as  such.      The  allegation  is,  in  substance,  that  the 
defendant  collected  the  money  as  agent,  or,  if  not  as  agent,  then  as 
attorney  in  fact.     (Id.)     The  embezzlement  by  an  officer  of  a  national 
bank,  of  a  special  deposit  in  such  bank,  is  not  made  punishable  by  any 
statute  of  the  United  States,  and  may  therefore  be  punished  under  a 
state  law.    Otherwise,  of  such  embezzlement  of  the  property  of  the  bank. 
State  v.  Tuller,  34  Conn.  280. 

27.  Patent  to  Land. — Fraud  may  be  shown  in  the  procurement 
of  a  deed,  or  the  execution  of  a  patent.     (Cooper  v.  Roberts,  6  McLean, 
93.)     In  an  action  to  set  aside  a  patent  for  land,  on  the  ground  that  it 
was  procured  by  false  suggestions,  fraudulent  concealments,  and  by 
misrepresentations,  the  acts  of  fraud  and  misrepresentation  must  be  speci- 
fied in  the  complaint.      (Semple  v.  Hagar,  27  Cal.  163.)      Where  a 
party,  in  order  to  bring  himself  within  a  class  of  legislative  grantees,  must 
exhibit  his  muniments  of  title,  fraud  may  be  shown  to  prove  that  they 
have  been  dishonestly  obtained.      (Seabury  v.  Field,   i  McAll.  60.) 
When  it  appears  that  the  relator  is  the  real  party  in  interest,  and  that 
'the  State  has  no  direct  interest  in  the  event  of  the  suit,  he  has  a  right  to 
•the  control  of  the  suit,  and  is  responsible  for  its  commencement,  con- 
duct, and  costs.     People  ex  rel.  Rondel  v.  Nor.  San  Fran.  Homestead 
and  R.R.  Ass'n.,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

23.  Patent  to  Land — Form  of  Complaint. — A  complaint 
which  merely  avers  that  the  relator  is  seized  and  possessed  of  the  land, 
and  that  his  title  was  derived  from  the  State  of  California,  under  and  by 
virtue  of  the  location  of  a  school  warrant  made  under  and  in  accordance 
with  the  provisions  of  an  Act  of  the  Legislature;  that  said  location  was 


FOR    FRAUD.  427 

duly  and  properly  made,  and  in  all  respects  according  to  the  provision 
of  said  Act,  does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
(People  v.  Jackson,  24  Cal.  632.)  A  general  averment  of  the  perform- 
ance of  conditions  precedent  is  sufficient  in  actions  on  contracts,  but 
in  other  cases  the  facts  showing  the  performance  must  be  alleged.  (Id.) 
A  complaint  in  equity,  filed  for  the  purpose  of  setting  aside  a  grant, 
on  the  ground  that  it  was  obtained  by  fraud,  must  state  specifically  and 
definitely  the  facts  constituting  the  fraud.  Oakland  v.  Carpentier,  21 
Cal.  642. 

29.  Relief  from  Fraud. — In  actions  for  relief  against  fraud,  the 
fraud,  and  not  the  discovery,  is  the  substantive  cause  of  action.    (Sublette 
v.  Tinney,  9  Cal.  423;  Carpentier  v.  Oakland,  30  Cal.  444.)     Relief 
will  not  be  afforded  upon  the  ground  of  fraud,  unless  it  be  made  a  dis- 
tinct allegation  in  the  bill,  so  that  it  may  be  put  in  issue.     (Noonan  v. 
Lee,  2  Black.  499.)     And  allegations  of  fraud  in  a  bill,  which  allega- 
tions are  subsequently  withdrawn,  cannot  aid  the  jurisdiction.     (Adams 
v.  Preston,  22  How.  U.S.  473.)      Where  the  bill  charges  actual  and 
intentional  fraud,  and  prays  for  relief  on  that  ground,  the  complainant 
cannot,  under  the  prayer  for  general  relief,  rely  on  circumstances  which 
amount  to  a  case  for  relief  under  a  distinct  head  of  equity,  although 
those  circumstances  substantially  appear  in  the  bill,  but  are  charged  in 
aid  of  the  charge  of  actual  fraud.     (Eyre  v.  Potter,  15  How.  U.S.  42.) 
If  a  bill  charges  fraud  as  the  ground  of  relief,  fraud  must  be  proved. 
Fisher  v.  Boody,  i  Curtis  C.  Ct.  206. 

30.  Return  of  Purchase  Money. — When  a  plaintiff  is  in  a 
condition  to  rescind  a  contract,  he  may  recover  back  in  assumpsit  the 
money  paid  on  it.    (Crossgrove  v.  Himmelrich,  54  Penn.  203.)    Where 
an  action  is  in  disaffirm  ance  of  a  contract  to  recover  back  the  price 
paid,  and  it  appears  that  the  plaintiff  has  complied  up  to  the  time  of 
electing  to  rescind,  tender  or  offer  of  the  money  which  would  have 
been  due  on  completion  is  not  essential.     (Id.)     Where  an  action  is 
in  affirmance  of  a  contract,  an  offer  of  readiness  to  pay  is  material.   Id. 

31.  Return,  Allegation  for. — That  on,  etc.,  as  soon  as  he  had 
ascertained  that  the  said  representations  were  untrue,  he  demanded  of 

defendant  a  return  of  said dollars,  which  defendant  refused 

and  still  refuses. 

32.  Sale  by  Wife. — While  property  after  a  sale  under  a  fore- 
closure was  subject  to  redemption,  the  wife,  by  her  quit  claim  deed, 


428  *  FORMS    OF     COMPLAINTS. 

conveyed  all  her  interest  in  it  to  S.,  for  an  inadequate  consideration, 
and  immediately  thereafter  S.  conveyed  it  to  C.,  who  furnished  the 
money  which  was  paid  to  the  wife:  Held,  that  she  is  not  entitled  to 
rescind  the  contract  of  sale.  (Perkins  v.  Center,  35  Cal.  713.)  The 
rights  of  the  wife  in  the  homestead  cannot  be  prejudiced  by  fraudu- 
lent acts  of  husband,  where  she  did  not  participate.  Barber  v.  Babel, 
36  Cal.  ii. 

33.  Statute   of  Limitations. — A    cause    of   action    on    the 
ground  of  fraud  is  barred  after  three  years  from  the  perpetration  of  the 
fraud.     (Carpentier  v.  Oakland,  30  Cal.  444.)     If  the  plaintiff  wishes 
in  such  a  case  to  bring  himself  within  the  exception  of  the  statute,  he 
must  allege  the  fact  of  a  discovery  of  a  fraud  at  a  period  bringing  him 
within  the  exception.     (Id.}     The  complaint  should  also  aver  that  the 
acts  constituting  the  fraud  had  been  discovered  within  three  years; 
but  if  the  replication  contains  this  averment,  and  this  issue  is  tried 
without  objection,  the    irregularity  in  the  answer  of  presenting  the 
issue   will   be   disregarded.      (Boyd   v.  Blankman,  29   Cal.    20.)      If 
plaintiff  alleges  fraud  to  have  been  committed  more  than  three  years 
before  the  commencement  of  his  action,  to  bring  himself  within  the 
exception  of  the  statute,  he  must  allege  the  fact  of  a  discovery  at  a 
period  bringing  him  within  the  exception.      Sublette  v.  Sinney,  9  Cal. 
423;  Boyd  v.  Blankman,   29  Cal.  20;  Carpentier  v.  City  of  Oakland, 
30  Cal.  444. 

34.  Time  must  be  Alleged. — And  especially  must  there  be 
distinct  averments  as  to  the  time  when  the  fraud,  mistake,  conceal- 
ment, or  misrepresentation  was  discovered,  and  what  the  discovery  is, 
so  that  the  Court  may  clearly  see  whether  by  the  exercise  of  ordinary 
diligence  the  discovery  might  not  have  been  before  made.     Stearns  v. 
Page,  7  How.   U.S.  819. 

No.  507. 

ii.    For  Rescission  of  Contract,  on  the  Ground  of  Mistake. 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

w 

I.    That  on  the    day  of ,   1 8 .  . ,    the 

defendant  represented    to  the  plaintiff  that  a  certain 


FOR    FRAUD.  429 

piece  of  ground  belonging  to  the  defendant,  situated  at 
,  contained  twenty  acres. 

II.  That  the  plaintiff  was  thereby  induced  to    pur- 
chase the  same,  at  the  price  of dollars  per 

acre,  in  the  belief  that  the  said  representation  was  true, 
and  signed  an  agreement,   of  which  a  copy  is  hereto 
annexed,  and  marked  "  Exhibit  A,"  and  made  a  part 
hereof.     But  no  deed  of  the  same  has  been  executed  to 
him. 

III.  That  on  the  ....  day  of ,  18.  .,  the 

plaintiff  paid  the   defendant dollars,  as  part 

of  such  purchase  money. 

IV.  That  the  said  piece  of  ground  contained  in  fact 
only  ten  acres. 

Wherefore  the  plaintiff  demands  judgment: 

1.  For    dollars,    with   interest   from   the 

....  day  of ,  1 8 ... 

2.  That  the  said  agreement  of  purchase  be  delivered 
up  and  canceled. 


35.  Action  Lies. — It  is  a  well  settled  principle  that  mistakes  in 
written  instruments  may  be  corrected  in  a  court  of  equity,  and  it  will 
not  only  go  back  to  the  original  error  and  reform  it,  but  will  adminis- 
ter complete  justice  by  correcting  all  subsequent  mistakes  which  grow 
out  of  and  were  superinduced  by  the  first.     Quivey  v.  Baker,  Cal.  Sup. 
Ci.,  Apl.  T.,  1869;  and  Cole  v.  Rickle,  at  the  same  term  decided  on 
its  authority. 

36.  As    to    Quantity. — When   the    fraudulent    representations 
relate  to  the  quantity  of  the  land,  it  is  immaterial  whether  the  sale  is  in 
gross  or  by  the  acre.     Thomas  v.  Beebe,  25  N.K  244. 

37.  Knowledge  of  Plaintiff. — Though  the  fact  that  the  com- 
plainant had  means  of  ascertaining  the  facts  will  ordinarily  defeat  a  suit 


43O  FORMS    OF    COMPLAINTS. 

to  rescind  a  contract  on  the  ground  of  mistake  merely,  it  will  not  prevent 
a  recovery  if  actual  fraud  is  shown  to  have  been  practiced  upon  him 
to  induce  him  to  make  the  contract,  (i  Story  Eq.  Jur.  192,  222;  7 
Paige,  124;  2  P.  Wins.  154;  i  Sim.  37;  2  Id.  289;  i  Sch.  &  L.  429; 
Warner  v.  Daniels,  i  Woodb.  <Sf  M.  90;  S.C.,  9  Law  Rep.  160;  Ma- 
son v.  Crosby,  i  Woodb.  &  M.  342,  352;  Tuthill  v.  Babcock,  2  Id.  298.) 
Fraud  vitiates  all  contracts  tainted  by  it,  and  may  be  set  up  whether  a 
warranty  was  given  or  not.  i  Wash.  C.  Ct.  170;  i  Day,  156;  4  Mass. 
490;  4  D.  6"  E.  67;  Id.  337;  6  Johns,  no;  i  Id.  414;  2  Woodes. 
416;  7  vWajj.  68;  Smith  z>.  Babcock,  2  Woodb.  <&*  J/.  246;  Tyler  z;. 
Black,  i$Hmu.  U.S.  230. 


JVo. 

iii.     To  Reform  a  Conveyance  by  Mistake  in  the  Boundary. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  on  the day  of ,  18 .  . ,  the 

defendant  executed  and  delivered  to  the  plaintiff,  under 
his  hand  and  seal,  a  deed,  of  which  the  following  is  a 
copy:   \_give  copy  of  deed.~\ 

II.  That  the  discription  therein  given  of  the  premises 
intended  to   be  conveyed  was  erroneous,  and  in   fact 
does  not  describe  any  premises  whatever  \_here  insert 
wherein  the  error  lies], and  that  in  order  to  make  said 
deed  pass  any  premises  whatever  to  this  plaintiff,  and  to 
make  it  conform  to  the  actual  intention  of  the  parties,  it 
is  necessary  that  the  said  description  should  be  amended 
so  as  to  read  as  follows:   \_here  insert  correct  descrip- 
tion of  the  premisesl\ 

III.  That  the  plaintiff  has  paid  to  the  defendant  for 
the  said  premises  the  consideration  expressed  in  said 
deed. 


FOR    FRAUD.  43! 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  said  deed  be  reformed  as  aforesaid. 

2.  For  costs  of  this  action. 


38.  Deed. — A  complaint  in  equity  to  have  a  deed,  absolute  on  its 
face,  reformed  so  as  to  become  a  deed  of  trust,  which  avers  that  the 
deed  does  not  express  the  trusts  and  Conditions  upon  which  it  was 
agreed  the  property  should  be  transferred,   but  that  such  conditions 
were  by  the  defendants  fraudulently  suppressed,  without  any  statements 
of  what  acts  of  fraud  were  practiced,  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action.     (Kent  v.  Snyder,  30  Cal.  666.)     Where 
a  party  brings  a  bill  to  have  a  conveyance,  which  is  absolute  on  its 
face,  declared  a  mortgage  to  secure  an  oral  promise  to  pay  a  certain 
sum  of  money  in  gold,  and  to  redeem,  he  cannot  redeem  except  on 
paying  said  sum  in  gold,  and  this  not  on  the  ground  of  the  "  Specific 
Contract  Act,"  but  because  "  he  who  seeks  equity  must  do  equity." 
Cowing  v.  Rogers,  34  Cal.  648. 

39.  Mortgage. — For  the  allegations  of  a  complaint  seeking  to 
reform  a  mortgage  on   the   ground   of  fraud,  and  for  foreclosure  as 
reformed,  see  (DePeyster  v.  Hasbrouch,  n  N.F.  582.)     Facts  should 
be   distinctly  stated   entitling   the  plaintiff  to   relief.      Lamoreux   v. 
Atlant.  Ins.  Co.,  3  Duer,  680. 

40.  Terms  of  a  Contract. — Of  the  rules  of  pleading  applica- 
ble, where  a  party  sued  for  non-performance  of  a  contract  in  writing 
seeks  to  have  it  reformed,  so  as  to  express  the  real  intentions  of  the 
parties,  see  (Wemple  v.  Stewart,  22   Barb.  154.)     A  complaint  seek- 
ing to  have  a  written  contract  reformed,  and  for  judgment  thereon 
when  reformed,   states  but  a  single  cause  of  action.      (Gooding  v. 
McAlister,  9  H<nv.  Pr.   123.)     Where  in  reducing  an  agreement  to 
writing,  a  material  clause  has  been  omitted  by  mistake,  a  party  seeking 
to  avail  himself  of  the  actual  contract  must  obtain  a  reformation  of  the 
writing,  either  by  a  distinct  proceeding  to  reform  it,   or  by  specially 
pleading  the  mistake  in  the  action  in  which  the  contract  is  sought  to 
be  used,  and  asking  its  correction  as  independent  relief.     Under  a 
pleading  which  simply  states  the  terms  of  a  contract,  the  introduction 
of  a  written  agreement  respecting  the  subject  matter  cannot  be  followed 


432  FORMS    OF     COMPLAINTS. 

by  oral  proof  of  a  material  clause  alleged  to  have  been  omitted  by 
mistake  from  the  writing.     Pierson  v.  McCahill,  21  Cal.  122. 

41.  Written  Instrument. — In  an  action  for  reformation  of  a 
written  instrument,  the  complaint  should  state  the  facts  distinctly  which 
entitle  the  plaintiff  to  relief.  Lamoreux  v.  Atlantic  Ins.  Co.,  3 
Duer,  680. 

No.  509. 

iv.    To  Correct  an  Account  Stated. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiff  and  defendant,  having  had  mutual 

dealings,  on  the  ....  day  of ,  1 8 . . ,  came  to 

an  accounting,  upon  which  a  statement  of  the  said  account 
was  made  in  writing,  a  copy  of  which  is  annexed  as  a 
part  of  this  complaint,  marked  "  Exhibit  A.,"  whereby 

a  balance  of dollars  was  found  in  favor  of  the 

defendant. 

II.  That  since  the  said  statement  of  account,  the 
plaintiff  has  discovered  errors  and  false  charges  therein, 
of  which  he  was  wholly  ignorant  at  the  time  of  such 
settlement. 

III.  That  in  the  statement  of  said  account  so  settled 
he   is    charged    as   follows:    \_state   items  wrongfully 
charged,  and  show  the  error. ~\ 

IV.  That  the  following  items,  which  ought  to  have 
been  entered  to  his  credit  in  said  account,  were  by  mis- 
take   wholly   omitted   therefrom,  to  wit:     [specify  the 
items,  with  date,  amount,  etc."] 

V.  That  the  said  account  is  incorrect,  and  that  the 
balance  thereon  should  be  .  .  dollars  in  favor  of 


FOR    FRAUD.  433 

the  plaintiff,  instead  of dollars  in  favor  of  the 

defendant. 

VI.    That  as  soon  as  the  plaintiff  discovered  the  said 

errors,  to  wit:  on  the  ....  day  of ,  18 .  . ,  he 

pointed  the  same  out  to  the  defendant,  and  then  requested 
the  defendant  to  correct  the  same,  and  to  restate  the 
said  account  correctly,  but  the  defendant  refused  to  do 
so,  or  to  pay  the  plaintiff  any  part  of  said  sum  of 

dollars,  in  accordance  with  the  stated  account 

as  corrected. 

Wherefore  the  plaintiff  asks: 

1.  That  he  may  be  let  in  to  prove  the  said  errors  in 
the  stating  of  the  said  account. 

2.  That  judgment  may  be  rendered  against  the  de- 
fendant for  the  said  balance  of dollars,  on  said 

corrected  account,  with  interest  thereon  from  the  .... 
day  of ,  1 8 ... 

[Annex  Copy  of  Account^ 

42.  Fraudulent  Account. — Where  the  Board  of  Supervisors  of 
a  county  allowed  an  account  presented  for  services  as  tax  collector,  and 
the  auditor  drew  his  warrant  in  favor  of  E.  for  the  amount,  and  he 
assigned  it  to  defendant  M.,  a  bona  fide  purchaser  without  notice:  Held. 
that  the  County  cannot  go  into  equity  to  cancel  the  warrant  and  enjoin 
its  collection  as  against  M.,  on  the  ground  that  the  account  was  false  and 
fraudulent  as  to  some  of  its  items,  and  was  allowed  by  the  board  through 
ignorance  of  the  facts  and  mistake;  that  the  Supervisors  were  acting 
within  the  scope  of  their  authority,  and  the  County  cannot  visit  upon 
an  innocent  party  the  consequences  of  their  negligence.  El  Dorado 
County  v.  Elstner,  18  Cal.  144. 


28 


434  FORMS    OF    COMPLAINTS. 

No.  510. 

v.     For  Procuring  Property  by  Fraud. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    ....    day   of ,    18 .  . ,  at 

,  the  defendant,  for  the  purpose  of  inducing 

the  plaintiff  to  sell  him  certain  goods,  represented  to 

the  plaintiff  that  he  was  solvent,  and  worth 

dollars  over  all  his  liabilities. 

II.  That  the  plaintiff  was  thereby  induced  to    sell 
[and  deliver]  to  the  defendant  [certain  goods,  wares, 
and  merchandise]  of  the  value  of dollars. 

III.  That  the  said  representations  were  false  [or  state 
the  particular  falsehoods^,  and  were  then  known  by  the 
defendant  to  be  so. 

IV.  That  the  defendant  has  not  paid  for  the  said 

goods. 

[Demand  of  Judgment.] 


43.  Action  Lies. — Where  money  or  property  is  procured  upon 
credit  by  fraud,  an  action  of  debt  will  lie  before  the  term  of  credit  has 
expired.  And  a  suit  in  this  form  does  not  affirm  the  contract.  (3  Taunt. 
274;  3  M.&  Selw.  191;  4  Esp.  28;  i  Id.  430;  2  Id.  523,  524;  4  Greenl. 
306;  6  Johns,  no;  i  Com.  on  Con.  38;  Gibson  v.  Stevens.  3  McLean, 
551.)  Any  false  representation  or  artifice  by  a  purchaser  of  goods,  if 
the  seller  is  thereby  induced  to  part  with  them,  which  otherwise  he 
would  not  have  done,  will  invalidate  the  sale,  whether  the  purchaser  is 
solvent  or  insolvent.  (Klopenstein  v.  Mulcahy,  4  Nev.  Rep.  296.)  A 
sale  of  goods  on  credit  will  be  avoided  where  the  buyer,  knowing  him- 
self insolvent,  purchases  with  the  intention  of  not  paying  for  them, 
although  no  false  representations  are  made  by  him.  Klopenstein  v. 
Mulcahy,  4  Nev.  Rep.  296. 


FOR    FRAUD.  435 

44.  Essential   Averments. — The   intention  to  influence  the 
plaintiff  by  the  false  representations  should  be  alleged.     (Cazeaux  v. 
Mali,  25  Barb.  578.)     The  complaint  must  show  what  the  representa- 
tions were.      (Wells  v.  Jewett,  n  How.  Pr.  242.)     And  the  falsity 
must  be  shown  to  have  existed  at  the  time  the  representations  were 
made.     (Bell  v.  Mali,  n  How.  Pr.  254.)      That  he  falsely  and  fraud- 
ulently represented,  etc.,  it  has  been  held  is  a  sufficient  averment  of 
knowledge  that  his  representations  were  false.     (Thomas  v.  Beebe,  2  5 
N.Y.  244;    Bayard  v.  Malcolm,  2  Johns.  550;  compare  Evertson  v. 
Miles,  6  Johns.  138;  Panton  v.  Holland,  17  Id.  92;  Cross  v.  Garnett, 
3  Wood.  269.)    Where  goods  were  sold  upon  the  false  representations  of 
the  purchaser,  no  title  to  them  passed  by  the  sale.     (Martin  v.  Levy, 
Cal.  Sup.  Ct.,  Jul.  T.,  1869;   citing  Bell  v.  Ellis,  33  Cal.  620.)      But 
such  false  representations  will  not  avoid  the  sale  unless  it  appears  that 
the  seller  was  thereby  induced  to  do  that  which  he  would  probably  not 
have  done  but  for  them.     Klopenstein  v.  Mulcahy,  $Nev.  Rep.  296. 

45.  Fraud   in   Sale. — To  recover,  the   fraud  must  have  been 
practised  on  the  complainant.      (Simpson  v.  Wiggins,  3  Woodb.  6f  M. 
413.)    The  doctrine  of  fraud  in  sales  discussed  in  Smith  v.  Richards,  13 
Pet.  26;  Blydenburgh  v.  Welsh,  Baldw.  331. 


No.  511. 

vi.     Against  a  Fraudulent  Purchaser  and  his  Transferee. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,    1 8 . . ,  at 

,  the  defendant  A.  B.,  for  the  purpose  of  in- 
ducing the  plaintiff  to  sell  him  certain  goods,  represented 

to  the  plaintiff  that  [he  was  solvent,  and  worth 

dollars  over  all  his  liabilities], 

II.  That  the  plaintiff  was  thereby  induced  to  sell 
and  deliver  to  the  said  A.  B.    [one  thousand  cases  of 
machine  oils]. 

III.  That  the  said  representations  were  false,  and 


436  FORMS   OF    COMPLAINTS. 

were  then  known  by  the  said  A.  B.  to  be  so  [or  that 
at  the  time  of  making  the  said  representations,  the  said 
A.  B.  was  insolvent,  and  knew  himself  to  be  so]. 

IV.     That  the  said  A.  B.  afterwards  transferred  the 
said  goods  to  the  defendant  C.  D. 

Wherefore  the  plaintiff  demands  judgment: 

1.  For  the    possession   of  the  said    goods,   or  for 
dollars,  in  case  such  possession  cannot  be  had. 

2.  For dollars  damages  for  the  detention 

thereof. 


NOTE. — It  need  not  be  alleged  that  the  transferee  received  the 
goods  without  notice  or  without  consideration.  He  must  prove  that 
he  paid  value,  and  acted  in  good  faith.  Tallman  v.  Turck,  26  Barb. 
167;  compare  Stevens  v.  Hyde,  32  Id. 

46.  Disavowal  of  Sale. — On  a  fraudulent  purchase  the  seller 
may  disavow  the  sale  and  reclaim  the  goods,  or  affirm  the  sale  and  sue 
for  their  price;   and  in  the  latter  case  it  seems  that  an  injunction  may 
be  granted  under  §  2 1 9  of  the  Code,  restraining  the  buyer  from  dispos- 
ing of  the  goods.      Malcolm  v.  Miller,  6  How.  Pr.  456;  Reubens  v. 
Joel,  13  N.Y.  488;  Furniss  v.  Brown,  8  How.  Pr.  59;   Erpstein  vn 
Berg,  13  Id.  91. 

47.  Injunction. — Where  the    transfer   has   already  been  made, 
none  but  a  judgment-creditor  can  restrain  a  disposition  of  the  property 
by  the  fraudulent  assignee.     Reubens  v.  Joel,  13  N.Y.  488;  Bayaud  v. 
Fellows,  28  Barb.  451;  Perkins  v.  Warren,  6  How.  Pr.  341;  Sebring 
v.  Lant,  9  Id.  346. 


FOR    FRAUD.  437 

No.  512. 

vii.     For  Fraudulently  Procuring  Credit  to  b;  Given  to  Another  Person. 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.   That  on    the day  of ,   1 8 .  . ,  at 

,  the   defendant  represented   to  the   plaintiff 

that  one  C.  D.  was  solvent  and  in  good  credit,  and 
worth dollars  over  all  his  liabilities. 

•II.     That  the  plaintiff  was  thereby  induced  to  sell  to 

the  said  C.  D.  liquors  of  the  value  of dollars 

[on  ....  months  credit]. 

III.  That  the  said  representations  were  false,  and 
were  then  known  to  the  defendant  to  be  so;  and  were 
made  by  him  with  intent  to  deceive  and  defraud  the 
plaintiff  [or  to  deceive  and  injure  the  plaintiff]. 

IV.  That  the  said  C.  D.  did  not  pay  for  the  said 
goods  at  the  expiration  of  the  credit  aforesaid  [or  has 
not  paid  for  the  said  goods,  and  the  plaintiff  has  wholly 
lost  the  same  by  reason  of  the  premises]. 

[Demand  of  Judgment.} 


48.  Essential  Averments. — In  an  action  to  recover  back  prop- 
erty which  had  been  fraudulently  obtained  upon  credit,  it  is  not  neces- 
sary to  aver  that  the  plaintiff  tendered  back  the  notes  received  from  the 
purchaser.  The  fact  of  tendering  back  such  notes  only  goes  to  show 
that  the  plaintiff  has  not  affirmed  the  contract  after  he  had  knowledge 
of  the  fraud.  (King  v.  Fitch,  i  Keyes,  432.)  Deceit  on  the  part  of  the 
defendant  and  damage  to  the  plaintiff  are  the  cause  of  action,  without 
alleging  that  the  defendant  reaped  any  benefit  or  advantage  therefrom. 
•(White  v .  Merritt,  7^^352.)  So  of  the  assertion  of  a  falsehood  with  a 
fraudulent  design,  when  a  direct  and  positive  injury  arises  from  the 


438  FORMS    OF     COMPLAINTS. 

assertion.  (Benton  v.  Pratt,  2  Wend.  385.)  For  the  proper  mode  of 
pleading  in  such  actions,  for  fraudulently  inducing  a  third  person  to 
represent  an  insolvent  as  worthy  of  credit,  see  (Addington  v.  Allen,  1 1 
Wend.  374.)  The  mere  insolvency  of  the  purchaser  of  goods  on  credit, 
although  well  known  to  himself,  If  no  false  representations  are  made, 
and  no  artifice  used,  will  not  avoid  a  sale  to  him.  Klopenstein  v. 
Mulcahy,  4  Nev.  Rep.  296. 

49.  False  Recommendation. — A  false  recommendation  of  the 
credit  or  property  of  a  third  person,  with  knowledge  that  it  is  untrue, 
and  with  intent  to  gain  credit  for  such  third  person,  is  a  fraud  for  which 
the  party  giving  it  may  be  held  liable.    (Russell  v.  Clark,  7  Cranch,  69.) 
But  if  the  representation  is  honestly  made,  the  fact  that  it  was  not  true 
does  not  constitute  it  a  fraud.     (Id.)     Thus,  a  mistaken  opinion  of  the 
value   of  property,  if  honestly  entertained,  and  stated   merely  as"  an 
opinion,  unaccompanied  by  any  statement  untrue  in  fact,  is  not  fraudu- 
lent.    (Hepburn  v.  Dunlop,  i    Wheat.  179;  Fisher  v.  Boody,  i   Curt. 
C.    Ct.    206.)      But   making   statements    without   knowledge,    which 
induced  the  seller  to  sell,  and  which  are  false  in  material  points,  are 
fraudulent.     Fisher  v.  Boody,  i  Curt.  C.  Ct.  206;  Warner  v.  Daniels, 
i    Woodb.  &  M.  90,   107;  Mason  v.  Crosby,  Id.  342,  353;  Smith  v. 
Babcock,  2  Id.  246. 

50.  Representations. — A  specific  statement  of  the  representa- 
tions is   necessary.     (Addington  v.  Allen,   n     Wend.  374;  Wells   v. 
Jewett,  6  How.  Pr.  242.)     And  they  must  be  shown  to  have  been  false 
at  the  time  they  were  made.     Bell  v.  Mali,  Id.  254. 

51.  That  the  Representations  -were  False. — As  to  the 

necessity  of  this  averment,  see  (Zabriskie  v.  Smith,  13  N.Y.  330; 
Addington  v.  Allen,  n  Wend.  386.)  If  the  complaint  states  the 
representations  that  were  made,  stating  them  as  representations  of  fact, 
made  by  the  defendants  of  their  own  knowledge,  and  not  as  expressions 
of  opinion  or  belief,  that  they  were  false,  that  plaintiff  relied  on  them, 
and  that  he  suffered  damages  thereby,  would  be  sufficient.  (Sharp  v. 
Mayor  of  N.Y.,  40  Barb.  256.)  The  complaint  averred  a  fraudulent 
agreement  between  the  defendants  L.  and  another  (composing  a  firm) 
and  G.,  to  obtain  goods  on  G.'s  credit,  on  representations  made  by  L. 
of  G.'s  solvency,  and  that  the  representation  of  L.  and  the  purchase  of 
G.  "  were  made  in  pursuance  of  such  fraudulent  agreement,  and  were 
a  device  and  contrivance."  Held,  sufficient.  Ballard  v.  Lockwood,  i 
Daly,  158. 


FOR    FRAUD.  439 

52.  Title  does  not  Pass. — Where  goods  were  sold  upon  credit, 
upon  representations  that  left  the    impression  on  the  seller  that  the 
buyer  possessed  mining  claims,  which  were  of  themselves  an  "immense 
fortune,"  and  these  representations  were  false,  no  title  to  the  goods 
passed  to  the  buyer.     Bell  v.  Ellis,  33  Cal.  620,  cited  in  Martin  v.  Levy, 
Cal.  Sup.  Ct.,  Jut.  T.,  1869. 

53.  When  Action  Lies. — An  action  lies  for  a  false  and  fraudu- 
lent representation  whereby  another  has  suffered  damage.     (Marshall 
v.  Buchanan,  35  Cal.  264.)     And  the  question  of  fraudulent  intent  is 
a  question  of  fact  for  the  jury.     (Tully  v.  Harlow,  35  Cal.  302.)     The 
principles  upon  which  the  action  is  based,  and  the  authorities  which 
support  it,  collected  in  (Addington  v.  Allen,  1 1    Wend.  374.)     Such  an 
action  cannot  be  joined  with  a  cause  of  action  on  a  guaranty  of  the 
amount  of  purchase.     Robinson  v.  Flint,  7  Abb.  Pr.  393. 


No.  513. 

viii.    Against  Directors  of  a  Corporation,  for  Damages  Caused  by  their 

Misrepresentations. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That    before   the    time  hereafter    mentioned,    at 
,  a  corporation  was  formed,  or  pretended  to 

be  formed,  for  the  purpose  of  insuring  property  against 
losses  by  fire,  and  for  other  purposes;  which  corpora- 
tion was  named  the Insurance  Company. 

II.  That  the  said  company  was  organized  or  pre- 
tended to  be  organized  under  the  provisions   of  a  law 
of  this    State,    passed    [date   of  act],  entitled,     "An 
Act,  etc." 

III.  That  the  charter  of  the  said  company  provided, 
among  other  things,  that  the  capital  thereof  should  be 
dollars,  to  be  paid  up  in  cash. 

IV.  That   at   the   times   hereafter   mentioned,    the 


440  FORMS   OF    COMPLAINTS. 

defendants  were    [or   represented   themselves   to   be] 
directors  of  said  company. 

V.  That  at  sundry  times  between  the  ....  day  of 

,  1 8 .  . ,  and  the  ....  day  of ,  1 8 . . , 

the  defendants  represented  to  the  public  at  large  [or 
to  the  plaintiff]  that  the  said  company  had  a  paid  up 
cash  capital  of dollars. 

VI.  That   on    the  ....  day   of ,  18 .  . ,    at 

,  the  defendants  published  a  statement  show- 
ing that  the  profits  of  the  said  company  amounted  to 

dollars,  and  declared  a  dividend  of  ....  per 

centum. 

VII.  That  the  said  representations  were  wholly  false, 
and  were  then  known  by  the  defendants  to  be  so,  and 
were    made    with    intent   to   deceive  and   defraud   the 
public,  and  to  induce  persons  to  insure  with  the  said 
company.     That  the  said  company  never  had  a  cash 

capital  of  more  than dollars,  and  had  not  on 

the    said   ....   day    of    ,    1 8 . . ,    more    than 

dollars  profits. 

VIII.  That  by  the  said  representations  the  plaintiff 
was  induced  to  insure  with  the  said  company;  which 
accordingly   issued   to    him   a   policy   of  insurance,  of 
which  a  copy  is  hereto  annexed,  marked  "  Exhibit  A." 

IX.  That  on  the  ....  day  of ,   18 . . ,   the 

property  mentioned  in  the  said  policy  was  destroyed 
or  greatly  injured  by  fire,  and  the  plaintiff's  loss  thereon 
amounted  to dollars. 

X.  That    on    the  ....  day   of ,  1 8 . . ,    at 

,  the  plaintiff  obtained  judgment  against  the 

said  company  upon  the  said  policy,  for dollars, 

in  the Court,  of 


FOR    FRAUD.  44! 

XI.  That  on  the  [same  day]  an  execution  was  issued 
upon  the  said  judgment,  against  the  property  of  the 

said  company,  to  the  Sheriff  of  the  County  of , 

which  was  returned  wholly  unsatisfied. 

XII.  That  by  reason  of  the  premises,  the  plaintiff 
has  lost  the  whole  amount  of  the  said  judgment. 

[Demand  of  Judgment^ 
[Annex  Copy  of  Policy,  marked  "  Exhibit  A."] 


54.  Averment  of  Fraud. — A  general  averment  that  the  officers 
of  a  corporation,  "  with  intent  to  deceive  and  defraud  those  who  might 
become  purchasers  and  owners  of  the  stock,"  was  held  sufficient  on 
demurrer.     (Morse  v.  Swits,    19  How.  Pr.  275.)     Alleging  that   he 
"  falsely  and  fraudulently  represented  "  a  thing  to  be  what  it  was  not, 
is  not  enough.      Knowledge  or  intent  to  deceive  on  the  part  of  the 
defendant  must  be  alleged.     (Mabey  v.  Adams,   3   Bosw.  346.)     A 
general  allegation  of  fraud   will  not  be  regarded.     Oroville  and  Va. 
City  R.R.  Co.  ».  Superv.  of  Plumas  Co.,  Cat.  Sup.  Ct.,  Apl.  T.,  1869. 

55.  Contract  Ultra  Vires. — A  shareholder,  in  behalf  of  him- 
self and  the  other  shareholders,  may  maintain  a  bill  to  set  aside  an 
agreement  by  the  company  as  ultra  vires,  without  joining  as  defendants 
any  of  the  shareholders  who  have  assented  to  the  agreement.     Clinch 
Financial  Corporation,  Law  Rep.  4  Ch.  117. 

56.  Form. — For  a  complaint  in  an  action  by  the  receiver  of  an 
insurance  company,  organized  under  the  general  law  applicable  to 
such   companies,  which,  being   insolvent,    has   distributed   its   capital 
among  its  stockholders,  see  Osgood  v.  Laytin,  5  Abb.  Pr.  (N.S.)  I. 

57.  Fraudulent  Issue    of  Stock. — For  a  form  of  complaint 
brought  by  a  corporation  for  a  fraudulent  issue  of  stock,  which  was  on 
demurrer  sustained  in  the  New  York  Court    of  Appeals,    see  New 
York  and  N.  H.  R.R.  Co.  v.  Schuyler,  7  Abb.  Pr.  41;    Geery  v.  N.  J. 
and  Liverpool  S.  Ship.  Co.,  12  Abb.  Pr.  268. 

58.  Fraudulent  Representations. — For  fraudulent  represen- 
tations whereby  plaintiff   was  induced    to  purchase  stock,  see,  also, 
(Morse  v.  Swits,   19  How.  Pr.  275;    Mabey  v.  Adams,  3  Bosw.  346.) 
It  is  not  essential  that  the  representation  should  be  addressed  directly 


442  FORMS    OF    COMPLAINTS. 

to  the  plaintiff,  but  he  must  have  come  to  the  knowledge  of  it  before 
his  purchase.     Cazeau  v.  Mali,  25  Barb.  578. 

59.  Fraudulent  Representations  of  Value. — In  an  action 
for  fraudulent  representations  of  the  value  of  stock,  although  the  com- 
plaint does  not  allege  in  terms  that  the  defendant's  representations  were 
read  by  or  came  to  the  knowledge  of  the  plaintiff,  yet,  if  it  is  alleged 
that  she  was  induced  by  these  representations  to  purchase  the  stock  of 
the  company,  and  in  exchange  for  them  to  convey  lands,  it  is  sufficient. 
(Newbury  v.  Garland,  31  Barb.  121;  compare  Mabey  v.  Adams,  2 
Bosw.  346.)  If  any  fraud  is  practiced  upon  a  stockholder,  which  in- 
duces him  to  transfer  his  shares  to  the  company  for  less  than  they  are 
worth,  he  may  be  relieved  in  a  court  of  equity.  Hager  v.  Thompson, 
2  Black.  So. 


No.  514. 

ix.    Against  Seller,  for  Fraudulently  Representing  Chattels  to  be 

his  Property. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on    the    ....    day  of   ,    18 .  . ,  the 

defendant  offered  to  sell  to  the  plaintiff  a  certain  horse, 
and,  with  intent  to  deceive  and  defraud   the  plaintiff, 
did  falsely  and  fraudulently  represent  to  him  that  said 
horse  was  his  property. 

II.  That  the  plaintiff,  relying  on  said  representations, 
purchased  said  horse  of  the  defendant,  and  paid  him 
therefor  the  sum  of dollars. 

III.  That,  -in  truth,  and  as  defendant  then  well  knew, 
said  horse  was  not  the  property  of  the  defendant,  but 
was  the  property  of  one  A.  B. 

IV.  That  thereafter  the  said  A.  B.  sued  this  plaintiff 

in  the ,  to  recover  the  value  of  said  horse; 

and  although  this  plaintiff  used  due  diligence  in  the  de- 


FOR    FRAUD.  443 

fense  of  said  suit,  the  said  A.  B.  recovered  a  judgment 

against  the  plaintiff  in  said  Court  for  the  sum  of 

dollars,  which  this  plaintiff  has  since  paid. 

V.     That  on  the  ....  day  of ,  1 8 .  . ,  notice 

of  the  pendency  of  said  suit  was  given  to  the  defendant, 
[or  that  the  said  defendant  appeared  as  a  witness  in 
said  action]. 

VI.    That  by  reason  of  the  premises  the  plaintiff  has 
been  misled. 

[Demand  of Judgment '.] 


60.  Consideration.  —  The   action   may  be  maintained,  though 
there  was  no  consideration.     (Barney  v.  Dewey,  13  Johns.  224;  Corwin 
v.  Davison,  9  Cow.  22.)     The  averment  of  price  paid  goes  only  to  the 
amount  of  damages. 

61.  Fraudulent  Sale.  —  Circumstances  tending  to  show  fraud  in 
reference  to  the  adjournment  of  a  sale  previously  notified,  under  pro- 
ceedings "which  had  been  subsequently  abandoned,  and  the  present 
proceedings  commenced  anew,  held  not  to  amount  to  fraud   in  the 
sale,  (Leet  v.  McMaster,  51  Barb.  236.)     Fraudulent  representation 
or  deceit,  accompanied  by  damage,  constitute  a  good  ground  of  action 
in  respect  to  a  sale  of  lands.     Crandall  v.  Bryan,  5  Abb.  Pr.  162;  Clark 
v.  Baird,  9  N.Y.  183;  and  see  Van  De  Sande  v.  Hall,  13  How.  Pr.  458. 

62.  Inducement.  —  The  complaint  in  an  action  for  deceit  or 
fraud  in  the  purchase  or  sale  of  property,  induced  or  procured  by  false 
representations,  should  aver  their  falsity,  and  that  they  were  made  with  the 
intent  to  deceive  the  plaintiff,  and  induce  him  to  make  the  purchase  in 
question,  and  that  they  did  induce  such  trade,  to  the  plaintiff's  injury. 
(Barber  v.  Morgan,  51  Barb.  116.)     Complaint  for  deceit  or  fraud  by 
which  plaintiff  was  induced  to  purchase,  (Barber  v.  Morgan,  51  Barb. 
1  1  6.)     The  plaintiff  must  in  substance  aver,  not  only  that  the  defend- 
ant made  the  representations  to  induce  the  plaintiff  to  purchase,  but 
that  they  were  intended  to  defraud  or  deceive  him.     Barber  v.  Morgan, 
51  Barb.  116. 


63.     Notice.  —  A  notice  to  defendant  of  the  pendency  of  the  suit, 


444  FORMS   OF    COMPLAINTS. 

(Blasdale  v.  Babcock,  i  Johns.  517.)  An  allegation  that  defendant  was 
a  witness  at  the  trial  of  the  owner's  action  is  equivalent  to  an  averment 
of  notice.  Barney  v.  Dewey,  13  Johns.  224;  Corwin  v.  Davison,  9 
Cow.  22.  • 

64.  On  Faith  of  Representations. — A  complaint  alleged  that 
at  the  sale  and  transfer  of  a  note  and  mortgage,  "  the  defendant  repre- 
sented to  the  plaintiff,  that  said  mortgage  was  good,  and  a  valid  security 
for  the  payment  of  said  note,  and  the  plaintiff  supposed  and  verily  be- 
lieved, at  the  time  he  bought  the  same  as  aforesaid,  the  said  mortgage 
to  be  good,  and  that  it  was  a  valid  and  sufficient  security,  etc."     Held 
to  be  a  sufficient  allegation  that  the  plaintiff  purchased  on  the  faith  of 
the  defendant's  representations.     Hahn  v.  Doolittle,  18  Wis.  196. 

65.  Recovery. — Recovery  by  the  rightful  owner  against  the  buyer 
is  conclusive  against   the   fraudulent  seller.      Barney  v.  Dewey,   13 
Johns.  224. 

66.  Silent  Acquiescence  in  Fraud. — If  an  owner  stands  by  and 
surfers  an  innocent  person  to  be  misled  by  his  silence,  it  is  a  fraud 
upon  the  purchaser.     (The  "  Sarah  Ann,"  2  Sumn.   206;  affirmed,  13 
Pel.  387.)     But  the  mere  fact  of  a  wife  remaining  silent  as  to  her  rights 
is  not  a  circumstance  sufficient  to  affect  her  with  the  fraud.     Bank  of 
United  States  v.  Lee,  \^Pet.  107. 

67.  Silent  Partner. — A  silent  partner,  who  did  not  know  nor 
assume  to  know  as  to  the  truth  of  a  statement  of  the  condition  of  the 
firm  made  by  one  of  his  co-partners,  is  not  liable  for  fraud  effected  bj 
such  statement.     Chamberlain  v.  Prior,  2  Keyes,  539. 

68.  Sale  Under  Warranty. — Under  the  forms  of  pleading  at 
common  law,  the  vendor  of  chattels,  sold  with  a  warranty  of  title,  could, 
on  a  breach  of  the  warranty,  recover  damages  in  assumpsit,  or  he  might 
sue  in  an  action  on  the  case  for  deceit,  if  there  had  been  deceit,  as  well 
as  a  warranty  of  title;  but,  in  the  first  case,  he  must  aver  specially  that 
the  defendant  warranted  his  title  to  the  property,  and  that  a  breach  of 
the  warranty  occurred;  and  in  the  l^er,  that  the  defendant  falsely  or 
fraudulently  represented  himself  to  be  the  owner  of  the  property,  and 
that  he  knew  his  representations  were  false.     Miller  v.  Van  Tassel,  24 
Cat.  463;  see  "  Complaints  on  Warranties,"  Vol.  i.  p.  753,  et  seq. 

69.  Sufficient  Averments. — Averring  "that  defendant  falsely 
pretended  to  be  the  owner  "  of  a  certain  chattel,  and  "  that  he  fraudu- 


FOR   FRAUD.  445 

lently  sold  it  to  the  plaintiff,  whereby  he  became  liable,"  fixes  the  grava- 
men of  the  action  as  fraud.  (2  Johns.  560;  13  Id.  224;  Edic  v.  Crim, 
10  Barb.  445;  and  see  McGovern  v.  Payn,  32  Id.  83.)  That  actions 
of  this  description  are  founded  on  the  fraud,  not  on  the  contract,  see 
McDuffie  v.  Beddoe,  7  Hill,  578. 


No.  515. 

x.     The  Same — For    Fraudulently  Delivering    Smaller    Quantity    than 

Agreed  For. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiff,  on  the day  of  .  .  . '. , 

1 8 .  . ,  at ,  bought  of  the  defendant,  and  the 

defendant  sold  and  agreed  to  deliver  to  the  plaintiff  one 

hundred  tons  of  hay,  for  the  price  of dollars 

per  ton. 

II.  That  the  defendant  afterwards,  on  the  ....  day 

of ,  1 8 .  . ,  fraudulently  delivered  to  him  only 

ninety  tons  of  hay,  as  and  for  the  9§fd  quantity  of  one 
hundred,  so  bargained  for  and  sold,  and  pretending  it 
so  to  be. 

III.  That  the  defendant  at  the  time  well  knew  that 
the  hay  so  delivered  contained  only  the  quantity  of 
ninety  tons. 

[Demand  of  Judgment. \ 


446  FORMS    OF    COMPLAINTS. 

JVo.  516. 

xi.    To  Set  Aside  a  Judgment  Fraudulently  Obtained, 

• 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....  day  of ,  1 8 . . ,  said  de- 
fendant made  and  delivered  to  one  N.  B.  his  two  cer- 
tain promissory  notes,  each  for  the  sum  of 

dollars,  payable  to  the  order  of  said  N.  B.,  one  of  which 

notes  was  due  and  payable  on  the  ....  day  of , 

18 .  . ,  the  other  on  the  ....  day  of ,  18 . . ,  and 

which  notes  bore  interest  at  the  rate  of  ....  per  cent. 

per ,  and  afterwards  and  before  the  day  next 

hereafter  mentioned,  both  of  said  notes  were  by  the 
said  N.  B.  indorsed  and  delivered  to  the  plaintiff,  who 
then  became  and  now  is  the  legal  indorsee  and  holder  of 
the  same,  all  of  whkh  still  remain  unpaid. 

II.  that  on  the day  of ,  18 . . ,  the 

plaintiff  commenced  an  action  against  the  defendant  to 
recover  the  amount  due  on  these  notes,  and  procured 
an  attachment  to  be  issued,  which  on  the  same  day  was 
levied  by  the  defendant  E.  N.,  Sheriff  of  said  County  of 

,  on  seven  cows,  five  calves,  one  heifer,  one 

cart,  one  buggy  and  harness,  a  quantity  of  poultry,  a 
stack  of  hay  about  three  tons,  and  some  hay  under  a 
shed,  all  of  the  probable  value  of  five  hundred  dollars. 

III.  That  on  the  ....  day  of ,  1 8 . . ,  judg- 
ment was  entered  by  the  Deputy  Clerk  of  this  Court  in 
vacation,  wherein  the  said  A.  H.,  S.  W.  L.,  and  D.  B. 
were  named  as  plaintiffs,  and  the  said  J.  E.  as  defendant, 
in  favor  of  said  plaintiffs,  and  against  said  defendants, 


FOR    FRAUD.  447 

for  the  sum  of dollars,  and dollars 

costs.  That  the  papers  comprising  the  judgment  roll 
consist  [enumerate  them,  as]:  First,  Of  an  affidavit, 
etc.  [describe  if\\  Second,  A  paper  purporting  to  be 
signed,  etc.  \_describe  if\;  Third,  A  bill  of  costs,  etc. 
[describe  if\. 

IV.  That,  as  plaintiff  is  informed,  and  believes  to  be 

true,  on  the  said  ....  day  of ,  1 8  .  . ,  the  said 

A.  W.,  pretending  to  act  as  attorney  at  law  of  the  said 
H.,  L.,  and  B.,  presented  to  A.  M.,  the  Deputy  Clerk  of 
this  Court,  the  first  four  papers  heretofore  mentioned, 
which  at  the  time  of  presenting  the  same  were  all  at- 
tached together,  and  thereupon  requested  the  Deputy 
Clerk  to  file  the  same,  and  to  enter  up  a  judgment 

thereon  in  favor  of  said  H.,  L.,  and  B.,  for 

dollars,  and dollars  costs,  and  to  issue  imme- 
diate execution  therefor  to  the  Sheriff  of  this  County,  all 
of  which  the  said  Deputy  Clerk  then  and  there  did,  as 
requested  by  said  W.,  and  said  Deputy  Clerk  also,  at 
the  request  of  said  W.,  filed  up  and  filed  away  among 
the  said  papers  a  summons  in  the  said  action. 

• 

V.  That,  as  plaintiff  is  informed,  and  believes  to  be 

true,  previous  and  up  to  the  time  when  said  papers  so 
attached  together  were  filed  as  aforesaid,  no  complaint 
had  been  filed,  nor  has  any  suit  or  action  been  com- 
menced between  said  parties;  nor  had  any  summons 
been  issued  from  said  Clerk's  office;  nor  even  the  form 
of  one  filed  up  in  said  action,  all  of  which  facts  are  more 
fully  shown  by  the  affidavit  of  said  A.  M.  hereto  an- 
nexed, marked  "Exhibit  A,"  and  made  a  part  of  this 
complaint. 

VI.  That  said  P.  E.,  Sheriff  of  this  County,  received 


448  FORMS   OF    COMPLAINTS. 

the  said  execution    issued   on  said    judgment  on  the 

....  day  of ,  1 8 .  . ,  and,  on  the  ....  day  of 

said  month,  levied  the  same  on  the  property  above  spec- 
ified and  described,  and  which  levy  is  prior  to  said 
plaintiff's  attachment. 

VII.  The  plaintiff  further  alleges  that  the  said  pro- 
ceedings and  circumstances  under  which  said  judgment 
was  entered  up  by  the  said  Deputy  Clerk  render  the 
same  void  in  law,  the  said  Clerk  having  no  power  or 
jurisdiction  to  enter  such  judgment  under  the  circum- 
stances and  in  the  manner  before  stated,  and  that  the 
same  is  fraudulent  as  against  the  plaintiff,  and  tends  to 
his  great  and  irreparable  injury,  and  that  the  said  fraudu- 
lent and  void  judgment  was  consummated  under  the 
advice  and   by  the  connivance  of  said  defendant  W., 
who  was  employed,  as  deponent  is  informed  and  believes, 
by  said  E.,  and  confederated  with  him  and  said  H.,  L., 
and    B.,    to  procure  to  be   entered    upon   the  records 
of  said    Court    said    false,    covinous,    and   fraudulent 
judgment. 

VIII.  That  the  defendant  E.  is  insolvent,  and  ha,s  no 
visible  property  except  the  aforesaid  subject  to  execu- 
tion. 

IX.  That  defendant  E.  as  such  Sheriff  as  aforesaid, 
has,  as  plaintiff  is  informed  and  believes,  advertised  said 
property  for  sale,  under  the  execution  issued  upon  said 
fraudulent  and  void  judgment,  to  be  sold  on  the  .... 

of inst,  at  ....  o'clock  A.M.,  and  if  allowed 

to  proceed  with  said  sale  the  plaintiff  will  be  prejudiced 
to  the  amount  of  said  property,  and  will  probably  lose 
his  said  debt,  and  it  will  produce  to  him  a  great  and 
irreparable  injury. 


FOR    FRAUD.  449 

Wherefore  the   plaintiff  prays: 

1.  For  a  decree  of  this  Court,  that  the  judgment  so 
entered  as  aforesaid,  and  the  execution  thereon  issued, 
may   be   declared   void,    as    against   the  plaintiff   and 
the  creditors  of  said  E.,  and  that  it,  together  with  the 
said   writ  of  execution  issued  thereon,  may  be  wholly 
vacated  and  annulled. 

2.  That  the  said  property  seized  and  taken  under 
said  execution,   and  the  proceeds  of  the  sale  thereof, 
may  be  subjected  to  the  writ  of  attachment  issued  as 
aforesaid  in  the  action  of  the  plaintiff  against  said  de- 
fendant E.,  and  for  such  further  or  other  relief  as  to  this 
Court  may  seem  meet  in  the  premises,  and  for  costs  of 
suit  against  defendants. 

3.  And  in  the  mean  time  that  an  order  of  injunction 
may  issue  out  of  this  Court,  enjoining  and  restraining  the 
defendants,  their  attorneys,  agents,  and  servants,  and 
particularly  the  said  E.,  as  such  Sheriff,  from  selling  the 
said  property  under  said  execution,  and  from   in  any 
way  disposing  of  or  intermeddling  with  said  property,  or 
in  any  way  selling  or  disposing  of  said  judgment  so 
entered  in  favor  of  said  H.,  L.,  and  B.,  against  said  E. 

\Anmx  Copy  of  Affidavit,  marked  "Exhibit  A"~\ 


70.  Form  of  Complaint  from  (Crane  v.  Hirschfelder,  17  CaL 
367.)  A  party  is  not  confined  to  his  remedy  by  statute,  but  may 
resort  to  a  Court  of  equity  for  relief  against  a  judgment  obtained  by 
fraud  or  surprise.  (Carpentier  v.  -Hart,  5  CaL  407.)  For  a  complaint 
to  set  aside  a  judgment  on  the  ground  of  newly  discovered  evidence, 
and  for  fraud,  see  (Munn  v.  Warrall,  16  Barb.  221;  Hamel  v. 
Grimm,  10  Abb.  Pr.  150.)  To  restrain  a  corporation  from  enforcing 
a  judgment,  on  the  ground  that  it  has  ceased  to  .be  a  corporation, 
see  Southerland  v.  Lagro,  19  Ind.  192. 

29 


45O  FORMS    OF     COMPLAINTS. 

71.  Fraud  and  Deception. — If  the  plaintiff  relies  on  fraud  and 
deception,  practised  on  the  Court  in  the  matter  of  evidence,  the  com- 
plaint must  show  that  he  was  thereby  defrauded  of  his  opportunity  to 
defend,  and  that   his  defense   would  otherwise  have   been  effectual. 
(Riddle   v.  Baker,   13   Cal.  295.)     A   party  must  show   that   he   has 
exhausted  all  proper  diligence  to  defend  in  the  suit  in  which  judgment 
was  rendered. 

o 

72.  Fraud,  how  Alleged. — Where  a  creditor   files  a   bill   to 
cancel  and  set  aside  a  judgment  rendered  against  his  debtor,  on  the 
ground  that  it  is  fraudulent,  it  is  not  sufficient  to  aver  in  general  terms 
that  said  judgment  or  conveyance  was  fraudulent;  the  facts  and  circum- 
stances constituting  the   alleged  fraud  must  be  set  forth.      (Castle  v. 
Bader,  23  Cal.  75;  see,  also,  Snow  v.  Halstead,  i  Cal.  359.)     And  if  he 
wishes  in  addition  to  reach  the  property  of  the  debtor,  and  have  it 
applied  in  satisfaction  of  his  demand,  the  complaint  must  aver,  either 
that  the  plaintiff  has  acquired  a  lien  on  the  property  he  seeks  to  reach, 
or  that  he  has  recovered  a  judgment,  upon  which  an  execution  has  been 
issued  and  returned,  and  no  property  found.  (Id.}  Where  plaintiff  alleged 
that  he  was  satisfied  that  defendant  secured  certain  property  through 
fraud,  the  issue  pending  was  immaterial  in  not  presenting  a  point  upon 
which  the  case  could  be  decided  upon  its  merits.     Snow  v.  Halstead,  i 
Cal.  361. 

73.  Judgment  by  Confession. — Where  a  judgment  by  confes- 
sion is  attacked  by  a  creditor  as  fraudulent  against  him,  on  the  ground 
that  the  object  of  the  debtor  and  the  judgment-creditor  was  to  assist 
the  debtor  in  forcing  a  compromise  with  his  other  creditors,  rather  than 
to  enforce  the  judgment,  the  complaint  must  plead  this  ground  of  objec-.- 
tion  to  the  judgment.      A  general  averment  that  the  intent  was  to 
hinder,  delay,  and  defraud,  will  not  put  the  adverse  party  on  his  defense. 
(Meeker  v.  Harris,  19  Cal.  278.)     A  judgment  by  confession,  where 
the  Court  has  jurisdiction  of  the  subject  matter  and  the  parties,  however 
irregular  and  erroneous  it  may  be,  cannot  be  called  in  question  in  a 
collateral  proceeding,  if  it  was  entered  in  open  court,  and  regularly 
signed  by  the  judge  under  the  existing  practice.     (Cloud  v.  El  Dorado 
Co.,    12  Cal.    133;  Arrington   v.  Sheney,    5  Cal.   513.)     It   may  be 
attacked  for  fraud   by   creditors  of   the  judgment-debtor,  who  were 
defrauded  thereby,  and  that  in  some  direct  proceeding,  before  the  sale 
of  the  property  under  it  to  innocent  parties.     Miller  v.  Earle,  24  N.Y. 
in;  see  Richards  v.  McMillen,  6  Cal.  419;  Cordier  v.  Schloss,  12  Id. 


FOR    FRAUD.  451 

143;  S.C.,  18  Id.  576;  Wilcoxon  v.  Burton,  27  Id.  229;  cited  in  Lee  v. 
Figg,  Col.  Sup.  Ct.,  Apl  T.,  1869. 

74.  Judgment  by  Default. — In  a  suit  in  equity,  to  set  aside  a 
judgment  by  default  on  a  return  by  the  sheriff  of  personal  service,  on 
the  ground  that  defendant  in  fact  was  not  so  served,  and  never  had  any 
notice  of  the  proceedings,  and  that  he  had  a  valid  defense  to  the  action, 
the  allegations  relative  to  this  defense  showed  that  it  was  based  upon  an 
executory  agreement,  by  the  terms  of  which  certain  things  were  to  be 
done  by  plaintiff,  and  in  consideration  thereof  he  was  to  be  released 
from  the  debt  for  which  the  action  was  brought.     Held,  that  the  allega- 
tions are  insufficient  in  this,  that  they  do  not  state  that  any  of  these 
things  were  performed  by  him,  or  that  he  ever  offered,  or  was  or  has 
been  at  any  time  ready  or  willing  to  perform  the  same.     Gibbons  v. 
Scott,  15  Cal.  284. 

75.  Judgment  on  Stipulation. — Where  a  judgment  was  entered 
upon  a  stipulation  of  the  attorneys  in  the  action,  and  the  defendants  in 
the  action  subsequently  brought  a  suit  to  annul  the  judgment  for  fraud 
and  collusion,  the  facts  and  circumstances,  and  the  merits  of  their 
defenses  in  the  former  suit,  are  a  part  of  the  subsequent  action,  and 
may  be  shown.     Preston  v.  Hill,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

76.  Legal  Remedy  must  be  Exhausted. — To  obtain  the 
aid  of  chancery  for  relief  against  a  fraudulent  judgment,  it  must  be 
shown  that  the  plaintiff  has  exhausted  all  proper  diligence  to  defend  the 
action  in  which  judgment  was  rendered.     (Riddle  v.  Baker,  13  Cal.  295.) 
Where  the  complaint  contains  no  averment  showing  that  relief  could 
not  have  been  maintained  on  motion,  it  may  be  demurrable;  but  if  the 
fact  appears  on  the  record,  and  no  demurrer  be  interposed,  but  defend- 
ant goes  to  trial  on  the  merits,  the  objection  is  waived.     Bibend  v. 
Krentz,  20  Cal.  109. 


CHAPTER  V. 

I NJUNCTION. 

No.  517. 

i.    For  Restoration  of  Personal  Property  Threatened  with  Destruction, 

and  for  an  Injunction. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is,  and  at  all  times  hereafter  mentioned 
was  the  owner  of  [a  portrait  of  his  father,  or  other  rel- 
ative^, and  of  which  no  duplicate  exists  [or  state  any 

facts  shmving  that  the  property  is  of  a  kind  that  cannot 
be  replaced  by  money\. 

II.  That    on    the  ....  day   of  ....'....,  18 .  . ,   he 
deposited  the  same  for  safe  keeping  with  the  defendant. 

III.  That  on    the  ....  day    of ,  18 .  . ,    he 

demanded  the  same  from  the  defendant,  and  offered  to 
pay  all  reasonable  charges  for  the  storage  of  the  same. 

IV.  That  the  defendant  refuses  to  deliver  the  same 
to  the  plaintiff,  and  threatens  to  conceal,  dispose  of,  cut, 
or  injure  the  same,  if  required  to  deliver  it  up. 

V.  That  no  pecuniary  damages  would  be  an  ade- 
quate compensation  to  the  plaintiff  for  the  loss  of  the 
said  [painting]. 

Wherefore  the  plaintiff  demands  judgment: 

i.     That  the  defendant  be  restrained  by  injunction 


FOR    INJUNCTION.  453 

from    disposing   of,    injuring,   or   concealing   the    said 
[painting]. 

2.     That  he  return  the  same  to  the  plaintiff. 
No.   518. 

\\.     For  an   Injunction   Restraining    Waste  and  Injury. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   he   is   the  owner    in   fee   of  \_describe  the 
property]. 

II.  That  the  defendant  is  in  possession  of  the  same, 
under  a  lease  from  the  plaintiff. 

III.  That  the  defendant  has  [cut  down  a  number  of 
valuable  trees,  and  threatens  to  cut  down  many  more, 
for  the  purpose  of  sale] ,  without  the  consent  of  the 
plaintiff. 

Wherefore  the  plaintiff  demands  judgment,  that  the 
defendant  be  restrained  by  injunction  from  committing 
or  permitting  any  further  waste  on  the  said  premises. 
[Pecuniary  damages  might  also  be  demanded^. 


1.  Cancellation  of  Patent. — In  an  action  brought  by  the  State 
to  procure  the  cancellation  of  a  patent  for  land  sold  without  authority 
of  law,  where  the  person  claiming  under  the   patent  is  engaged  in 
removing  mineral  from  the  land,  the  State  is  entitled  to  an  injunction 
restraining  the  defendant  from  removing  the  same.     People  v.  Mor- 
rill,  26  CaL  352. 

2.  Cutting   and   Destroying   Timber. — Cutting,   destroying 
and  removing  timber  is  sufficient  ground  for  an  injunction,  without  any 
allegations  of  insolvency.     Henshaw  v.  Clark  and  one  hundred   and 
three  Chinamen,  14  Cal.  460. 


454  FORMS    OF     COMPLAINTS. 

3.  Fjectment. — At  common  law,  an  injunction  cannot  be  allowed 
against  waste,  etc.,  in  an  action  of  ejectment.     So  held  under  the  English 
statute,  which  resembles  ours  in  this  respect.     Bayles  v.  Le  Gros,   2 
C.B.  (N.S.}  322;  40  Eng.  L.  <&•  Eq.  272;  Storm  v.  Mann,  4  Johns. 
Ch.   21 ;    Davenport  v.  Davenport,  7  Hare,  217;  2  C.B.  (N.S.)   322; 
40  Eng.  L.  &  E.  272;  4  Johns.  Ch.  21;  7  Hare,  217;  see  10  Abb. 
Pr.  in. 

4.  Forcible    Entry    and    Detainer. — The  complaint  avers 
title  in  plaintiff  to  a  tract  of  land;  that  the  possession  of  defendants  is 
forcible  and  unlawful;  that  an  action  for  forcible  entry  has  been  com- 
menced by  plaintiff  against  defendants,  and  is  still  pending  and  unde- 
termined;   and    asks    for  an  injunction  to  restrain  defendants  from 
cutting  and  removing  timber  from  the   land,  without  seeking  in  this 
suit  to  be  restored  to  the  possession,  the  object  of  the  suit  being  to 
preserve   the  property  during  the  pendency  of  that  action.     Held,  that 
injunction  lies,  although  no  action  of  law  has  been  brought  to  try  the 
title;  that'  the  jurisdiction  of  equity  in  such  cases,  to  grant  first  a  tem- 
porary and  subsequently  a  perpetual  injunction,  does  not  depend  upon 
the  question  whether  or  not  such  action  at  law  has  been  brought;   that 
the  rule  under  the  English  chancery  system  was  the  same,  and  that  our 
statute  is  not  more  restrictive.      Hicks  v.  Michael,  15  Cal,  107;  see 
27  Cal.  643. 

5.  Parties. — An  injunction  will    be  granted,  at  the  suit  of  the 
mortgagee  of  real  property,  to  restrain  the  commission  of  waste  upon 
the  mortgaged  premises;  but  before' it  is  granted,  it  must  be  made  to 
appear  that  the  commission  of  the  threatened  waste  will  materially 
impair  the  value  of  the  mortgaged  property,  so  as  to  render  it  inade- 
quate security  for  the  mortgaged  debt,   and  that  the  defendants  are 
insolvent,  or  unable  to  respond  in  damages  for  the  threatened  injury. 
(Robinson  v.  Russell,  24  Cal.  473.)     So,  mortgagor  in  possession  may 
be  restrained  from  waste.     (2  Johns.   Ch.   148.)     But  the  mortgagee 
of  a  lot,  on  which  a  house  is  standing,  cannot  enjoin  the  mortgagor 
or  his  assigns  from  removing  the  house  from  the  lot,  except  upon 
proof  that  the  lot,  without  the  house,  will  be  an  inadequate  security  for 
the  mortgage  debt.   (Buckout  v.  Swift,  27  Cal.  434.)   Purchaser  under 
judgment  who  has  not  paid  for  the  property  may  be  restrained  from  waste. 
(i  Sim.  <&•  Stin.  381.)  After  a  decree  foreclosing  a  mortgage,  the  mort- 
agor  in  possession,  until  a  sale  is  made  under  the  decree,  is  not  accountable 
either  for  rents,  or  for  use  and  occupation,  and  is  subject  to  no  liability, 


FOR    INJUNCTION.  455 

except  that  he  may  be  restrained  from  the  commission  of  waste.  (Whitney 
v.  Allen,  21  Cal.  133;  Robinson  v.  Russell,  24  Cal.  473.)  Injunction  to 
stay  waste  by  tenants  in  common  lies  in  special  cases.  (2  Johns.  Ch. 
122.)  An  injunction  to  stay  waste  will  not  be  granted  where  the 
plaintiff  does  not  show  that  he  is  entitled  to  the  reversion.  (Pennie  v. 
Marsden,  Oct.  T.  1867.)  A  purchaser  under  a  judgment  may  be 
enjoined  from  waste  without  bringing  a  new  action.  Casarmajor  v. 
Strode,  i  Sim.  &  S/u.  381. 

6.  Partition. — In  a  bill  for  partition  among  tenants  in  common, 
and   for  injunction  against  cutting  timber  trees:  Held,  that  defendants, 
being  tenants  in  common,  had  the  right  to  the  enjoyment  of  the  com- 
mon estate,  and  to  cut  timber  or  use  or  dispose  of  it,  at  least  to  an  ex- 
tent corresponding  to  their  share  of  the  estate;  and  that  as  the  com- 
plaint neither  avers  the  insolvency  of  defendants,  nor  that  they  are 
exceeding  this   share,   injunction   does  not   lie.      Hihn  v.  Peck,    18 
Cal.  640. 

7.  Quieting  Title. — Where  the  complaint  and  evidence  show 
that  a  defendant  is  in  possession  of  a  tract  of  land,  and  claiming  and 
holding  under  an  adverse  title,  and  the  weight  of  evidence  is  in  favor  of 
his  title,  an  injunction  will  not  be  granted  on  the  application  of  a  party 
claiming  title  to  the  land,  to  prevent  the  defendant  from  cutting  timber 
thereon.      Smith  v.  Wilson,  10  Cal.  528. 

8.  Injunction  when  Plaintiff  is  in  Possession. — An  injunc- 
tion lies  to  restrain  a  threatened  injury  to  real  property,  in  the  nature  of 
a  waste,  even  if  the  plaintiff  is  in  possession  of  the  land.     (Moore  v. 
Massini,  32  Cal.  590.)     But  where  the  mischief  is  irreparable,  or  the 
defendant  is  insolvent,  although  the  title  is  in  dispute,  under  summary 
proceedings,  injunction  has  been  granted  to  stay  waste.     4  How .  Pr. 
177;  see  4  Kay  &  John.  126,  133. 

9.  Relief. — This  peculiar  relief  cannot  be  granted  in  every  case 
in  which  chattels  are  wrongfully  detained.     But  it  may  be  had  whenever 
pecuniary  damages  would  not  afford  an  adequate  remedy.     (North  v.  Gt. 
Northern  Railway  Co.,  2  Giff.  -64.)    Or  where  the  property  is  detained  in 
a  breach  of  trust.     (Wood  v.  Rorrclifte,  2   Phil.  382;  3   Hare,  309.) 
Plaintiff  must  not  only  show  that  he  will  sustain  present  injury,  but  that 
he  will  be  entitled  to  final  relief,  as  a  rule.     (Crocker  v.  Baker,  3  Abb. 
Pr.  182;  Wordsworth  v.  Lyon,  5  How.  Pr.  466.)      And  in  addition  to 
the  above,  it  is  held  in  the  following  cases  that  he  must  be  entitled,-to 


456  FORMS    OF     COMPLAINTS. 

relief  by  a  final  injunction.  (Duigan  v.  Hogan,  i  Bosw.  649;  16  How. 
Pr.  169;  Ward  v.  Dewey,  7  How.  Pr.  19;  Corning  v.  Troy  Factory, 
6  Id.  93;  Townsend  v.  Tanner,  3  Id.  84;  see  Hulce  v.  Thompson,  8 
Id.  477.)  But  the  contrary  was  held  in  a  later  case.  (Vermilyea  v. 
Vermilyea,  14  Hoiv.  Pr.  470;  6  Abb.  Pr.  511;  and  see  Laurie  v.  Laurie, 
9  Paige,  234.)  An  injunction  granted  upon  the  rendition  of  final 
judgment  is  a  part^f  the  judgment.  McGarrahan  v.  Maxwell,  28 
Cal.  84. 

9.  Restraint  of  Trade. — A  covenant  not  to  run  or  employ,  or 
suffer  to  be  run  or  employed,  a  steamboat,  upon  any  of  the  routes  of 
travel  on  the  rivers,  bays,  or  waters  of  the  State  of  California,  for  the 
period  of  ten  years,  applies  not  only  to  existing  routes  of  travel,  but  to 
all  new  routes  opened  during  the  ten  years.     (Wright  v.  Ryder,   36 
Cal.  342.)     An  agreement  in  partial  restraint  of  trade,  restricting  it 
within  certain  reasonable  limits,  or  confining  it  to  particular  persons,  is, 
if  founded  upon  a  good  consideration,  valid.     (Wright  v.  Ryder,  3$ 
Cal.  342.).   Such  a  contract,  if  it  include  the  entire  area  of  a  state,  is 
unreasonable  and  void,  as  against  public  policy.     Wright  v.  Ryder,  36 
Cal.  342. 

10.  Tax  Sale. — A  court  will  not  restrain  a  sale  for  taxes,  when  it 
is  apparent  upon  the  face  of  the  proceedings,  upon  which  the  purchaser 
must  rely  to  make  out  *.prima  facie  case,  to  enable  him  to  recover  under 
the  sale,  that  the  sale  would  be  void.     (Bucknall  v.  Story,  36  Cal.  67.) 
So,  where  an  injunction  is  sought  to  restrain  a  sale  under  execution, 
the   facts,  must  clearly  appear,  and  insolvency  of  defendant  must  be 
alleged.     More  v.  Ord,  15  Cal.  204. 

11.  Trespass. — Where  a  bill  avers  that  the  plaintiffs  are  the  owners 
and  in  possession  of  a  tract  of  land;  that  defendants  are  insolvent,  and 
threaten  to  and  will  enter  upon  said  land,  and  by  excavations,  em- 
bankments, and  diverting  valuable  springs  and  streams  thereon,  despoil 
it  of  the  substance  of  the  inheritance,  and  create  a  cloud  upon  plaintiff's 
title,  injunction  lies.     (Bensley  v.  The  Mountain  Lake  Water  Co.,  13 
Cal.  306.)     In  an  action  for  a  trespass  upon  a  mining  claim,  where  the 
complaint  avers  that  defendants  are  working  upon  and  extraci  the 
mineral  from  the  claim,  and  prays  for  perpetual  injunction,  and  the 
answer  admits  the  entry  and  work,  and  takes  issue  upon  the  titles;  if 
the  jury  to  whom  the  issue  of  title  is  submitted  finds  in  favor  of  the 
plaintiffs,  it  is  the  duty  of  the  Court  to  decree  the  equitable  relief  sought, 


FOR    INJUNCTION.  457 

and  enjoin  defendants  from  future  trespasses.  (McLaughlm  v.  Kelly, 
2  2  Cat.  211.)  Where  premises  containing  deposits  of  gold  are  held 
under  a  patent  from  the  United  States,  an  injunction  lies  to  prevent 
miners  from  excavating  ditches,  digging  up  the  soil,  and  flooding  a  por- 
tion of  the  premises,  for  the  purpose  of  extracting  the  gold.  (Boggs  v. 
Merced  Mining  Co.,  14  Cal.  379;  Henshaw  v.  Clark,  i  Cal.  464.)  A 
writ  of  injunction  will  lie  to  restrain  trespass  in  entering  upon  a  mining 
claim,  and  removing  auriferous  quartz  from  it,  where  the  injury  threatens 
to  be  continuous  and  irreparable.  It  comports  more  with  justice  to  both 
parties  to  restrain  the  trespass  than  to  leave  the  plaintiff  to  his  remedy 
at  law.  (Merced  Mining  Co.  v.  Fremont,  7  Cal.  317.)  Digging  lead 
ore  from  the  lead  mines  upon  public  lands  in  the  United  States  is  such 
waste  as  entitles  the  United  States  to  a  writ  of  injunction  to  restrain  it. 
United  States  v.  Fear, *}  How.  U.S.  120. 

12.  Verification. — A  complaint  for  an  injunction  must  be  verified. 
Cal.  Pr.  Act,  §  113. 

13.  What  must  be  Shown. — The  complaint  must  clearly  show 
that  there  is  no  remedy  at  law.     (Tomlinson  v.  Rubio,  1 6  Cal.  202 ; 
Devitt  v.  Hays,  2  Cal.  463;  Leach  v.  Day,  27  Cal.  363;  Logan  v.  Hil- 
legas,  1 6  Cal.  200;  Nev.  Co.  and  Sac.  Co.  Canal  Co.  v.  Kidd,  Cal.  Sup. 
Ct.,  Apl.  T.,,  1869.)     It  is  not  indispensable  that  a  bill  for  an  injunction 
should  contain  a  prayer  for  discovery.     (Lawrence  v.  Bowman,  i  Me  AIL 
419.)     The  simple  allegation  of  "irreparable  injury"  is  not  sufficient; 
it  should  appear  to  the  Court  from  the  facts  set  forth  in  the  bill.     (De- 
Witt  v.  Hays,  2  Cal.  463;  Branch  Turnpike  Co.  v.  Board  of  Supervisors 
of  Yuba  County,  13  Cal.  190;  Waldron.p.  Marsh,  5  Cal.  119.)    Plaintiff 
is  entitled  to  an  injunction  upon  the  complaint  alone,  if  it  makes  a 
proper  case  and  is  verified;  but  if  he  asks  for  injunction  thereafter,  he 
must  do  so  upon  affidavits.     Falkenburgh  v.  Lucy,  35  Cal.  52. 


458  FORMS    OF     COMPLAINTS. 

Wo.' 5 19. 

Hi.    The  Same — For  Injunction  and  Damages. 

[TlTLE.J 

i 
The  plaintiff  complains,  and  alleges : 

I.  That  the  plaintiff  being  then  and  ever  since  owner 
in  fee  of  the  premises  hereinafter  mentioned,  on  the 

....  day  of ,  1 8 .    ,  by  a  lease  in  writing  then 

made  between  the  plaintiff  and  the  defendant,  under 
their  hands  and  seals,  the  plaintiff  leased  to  the  defend- 
ant for  five  years  from  said  date,  at  a  yearly  rent  of 

dollars,  a  certain  dwelling-house,  with  barns 

and  outhouses  attached,  and  two  hundred  acres  of  land, 

at ,  in  the  County  of ,  the  property 

of  the  plaintiff. 

II.  That  said  lease  contained  a  covenant  on  the  part 
of  the  defendant,  of  which  the   following   is  a  copy: 
\_Copy  of  the  covenant  as  to  waste. ~\ 

III.     That   the    defendant   took   possession    of  the 
premises  under  said  lease. 

IV.  That  he  has  ploughed  up  the  garden,  destroying 
the  shrubbery  and  flowers  therein,  and  has  cut  down 
six  shade  trees,  and  has  also  cut  down  forty  fruit  trees 
in  the  orchard  \or  state  other  waste,  according  to  the 
fact~\,  and  has  otherwise  suffered  and  committed  great 

waste  on  the  premises;  by  reason  of  which  waste  the 

premises  are  worth    dollars    less    than  they 

were  when  the  defendant  took  possession  thereof,  and 
it  would  cost dollars  to  restore  them. 

V.  That  the  defendant  threatens  to  cut  down  other 
of  the  ornamental,  shade,  and  fruit  trees,  and  to  remove 


FOR    INJUNCTION.  459 

the  partitions  in  the  house,  and  turn  it  into  a  workshop 
[or  other  threatened  waste~\. 

Wherefore  the  plaintiff  asks  judgment: 

1.  That  the  defendant  may  be  required  to  repair  the 
premises. 

2.  That  he    pay   to   the    plaintiff dollars 

damages  done  to  and  suffered  by  the  premises. 

3.  That  he  be  required  to  keep  the  same  in  good 
repair  and  condition  during  the  continuance  of  his  inter- 
est therein,  and  to  manage  and  cultivate  the  farm  in  a 
proper  and  husbandlike  manner,  according  to  the  terms 
of  the  lease. 

4.  That  he  be  enjoined  from  committing  any  further 
waste,  and  particularly  from  [state  particidar  act  to  be 
enjoined~\. 

NOTE. — The  first  clause  of  this  prayer  had  better  be  omitted. 

13.  Forfeiture. — A  landlord  cannot  demand  an  injunction  against 
a  breach  of  covenant,  in  the  same  action  in  which  he  demands  a  for- 
feiture of  the  lease.     Such  reliefs  are  inconsistent.     (Linden  v.  Hep- 
burn, 3  Sand/.  668;   S.C.,   5  How.  Pr.  188;    9  N.Y.  Leg.  Obs.  80.) 
In  chancery,  a  bill  for  injunction  in  such  case  must  waive  forfeiture 
and  penalty.     3  Atk.  457. 

14.  Form. — See  Equity  Draughtsman,  350;  see,  also,  Hawley  v. 
Wolverton,  5  Paige,  522;  Rodgers  v.  Rodgers,  n  Barb.  595. 

15.  Injunction. — Injunction  to  restrain  injuries  in  the  nature  of 
waste  should  not  be  issued  before  the  hearing  of  the  merits,  except  in 
cases  of  urgent  necessity,  or  when  the  subject  matter  of  the  complaint 
is  free  from  controversy,  or  irreparable  mischief  will  tre  produced  by 
its  continuance.     (Hicks  v.  Michael,  15  Cal.  116.)     In  cases  which  are 
doubtful,  to  prevent  irreparable  mischief,  a  temporary  injunction  may 
be  granted.     (Id.;  9  Wend.  571;  7  Johns.  Ch.  315;  Sixth  Av.  R.R.  Co. 
v.  Kerr,  28  How.   Pr.  382;  affirming  S.C.,  45  Barb.  138;  Thurstin  v. 
Mustin,  3  Cranch  C.  Ct.  335.)     In  actions  for  waste  in  cutting  timber, 


460  FORMS    OF     COMPLAINTS. 

it  may  be  questionable  whether  an  injunction  is  proper  as  to  timber 
already  cut,  but  the  Court  having  acquired  jurisdiction,  it  may  require 
defendant  to  give  security  to  account  as  a  condition,  modifying  the  in- 
junction in  this  respect.  (Weatherly  v.  Wood,  29  How.  Pr.  404.^ 
Whether  a  provisional  injunction  should  issue  to  stay  anticipated  waste, 
in  cases  where  the  title  to  the  premises  is  disputed,  (Morse  v.  O'Reilly, 
6  Penn.  Law  J.  501 ;  United  States  v.  Parrott,  i  Me  All.  271.)  Digging 
lead  ore  from  the  lead  mines  upon  public  lands  in  the  United  States  is 
such  a  waste  as  entitles  the  United  States  to  a  writ  of  injunction  to 
restrain  it.  (United  States  v.  Gear,  3  How.  U.S.  120.)  A  court  of 
equity  will  in  some  cases  enjoin  against  the  removal  of  the  fruits  of  past 
waste.  United  States  v.  Parrott,  i  Me  All.  271. 

16.  When  Action  Lies. — Injury  to  real  property  must  be  con- 
tinuing to  authorize  an  injunction.  (Coker  v.  Simpson,  7  Cal.  34 ; 
Tuolumne  Water  Co.  v.  Chapman,  8  Cal.  392.)  An  injunction  ought 
not  to  be  granted,  unless  equitable  circumstances,  beyond  the  mere  allega- 
tion of  irreparable  injury,  be  shown — as  insolvency,  impediments  to  a 
judgment  at  law,  or  to  adequate  legal  relief,  or  a  threatened  destruction 
of  the  property,  or  the  like.  (Burnett  v.  Whitesides,  13  Cal.  156.)  As  « 
to  injunctions  for  waste  generally,  see  (13  Ohio,  322;  2  Greene  Ch. 
467;  15  Conn.  556;  2  John.  Ch.  148;  3  Bland.  Ch.  125;  I  John.  Ch. 
501;  2  Carter,  469;  5  J.  J.  Marsh,  196;  I  Rhode  Island,  272;  13 
Penn.  St.  438;  6  Eng.  L.  &  Eq.  Rep.  404.)  Whether  a  provisional 
injunction  should  issue  to  stay  anticipated  waste  in  cases  where  the  title 
to  the  premises  is  disputed,  see  (Morse  v.  O'Reilly,  6  Penn.  Law  J. 
501;  United  States  v.  Parrott,  i  McAll.  271.)  That  an  injunction  may 
be  granted  in  a  proper  case  to  restrain  waste,  see  Thurston  v.  Mustin, 
3  Cranch  C.  Ct.  335. 

JVo.  520. 

iv.      To  Restrain   the   Use  of  Plaintiff's  Trade  Mark. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  That  heretofore,  to  wit:  in  the  year  18.  .,  at  said 
city  and  county,  the  plaintiff  invented,  manufactured 
and  made  an  article  for  the  restoring  and  strengthening 


FOR    INJUNCTION.  461 

of  the  human  hair,  to  be  used  upon  the  head  and  hair, 
and  gave  to  said  article  the  name  by  which  it  was  and 
is  known  of hair  restorative. 

II.  That  he  is  now  and  for  a  long  time  has  been, 
and  at  the  time  of  and  before  the  committing  of  the 
grievances  hereinafter  mentioned,  was  the  manufacturer 
of  said  article,  which  he  has  for  a  long  time  offered  for 
sale,    and  sold  in  glass  bottles  labeled  with   his    own 
proper  labels,  devices  and  trade  marks,  and  in  wrappers 
or  circulars,  all  of  which  were  composed,  invented  and 
adopted  by  this  plaintiff  for  that  purpose,  specimens  or 
copies  of  which  labels,  devices  and  trade   marks,  and 
wrappers   or  circulars  are    hereto  annexed,  and  form 
part   of    this    complaint,    marked     "  Exhibit    A,"    and 
"  Exhibit  B,"  the  first  being  a  copy  of  the  label  and  the 
second  a  copy  of  the  wrapper  or  circular. 

III.  And  plaintiff  further  alleges  that  by  reason  of 
his  knowledge  and  long  experience  and  great  care  in 
his  said  business  of  manufacturing  and  making,  and  the 
good  and  useful  quality  of  the  said  article,  the  same 
became  and  was  at  and  before  the  time  of  the  griev- 
ances   hereinafter   mentioned,    widely   known    to    the 
community  as  a  valuable  and  useful  article,  and  acquired 
a  high  reputation  as  such,  and  commanded  and  still 
commands,  as  a  valuable  and  useful  article,   an  exten- 
sive sale  at  the  said  City  of ,  and  throughout 

the  said   State  of ,  which  is  and  for  the  last 

....  years  has  been  a  source   of  great  profit  to  the 
plaintiff. 

IV.  That  said  article  is  known  to  the  public,  and  to 
the   buyers   and   consumers   thereof,  by  the    name    of 

hair  restorative,  and  by  this  plaintiff's  own 


462  FORMS    OF     COMPLAINTS. 

proper  devices,  trade   marks,   labels,  and  wrappers  or 
circulars. 

V.  That  notwithstanding  the  long  and  quiet  use  and 
enjoyment  by  this  plaintiff  of  said  name,  devices,  trade 
marks,  labels,  and  wrappers  or  circulars,  the  defendant, 
well  knowing  the  premises,  but  willfully,  wrongfully  and 
unlawfully  disregarding  the  rights  of  this  plaintiff  therein, 

thereafter,  to  wit:  on  or  about  the  ....  day  of , 

1 8 .  . ,  willfully,  wrongfully,  unlawfully  and  fraudulently 
prepared   and   offered  for  sale,  and  sold,  and  always 
has  and  does  still  and  now  offer  for  sale,  and  sell,  at  the 

said  City  of     ,  and  elsewhere  throughout  said 

State  of ,  an  article  in  imitation  of  the  plaintiff's 

article,  which,  with  intent  to  deceive  and  defraud  the 
public,    and    the  buyers    and    consumers  thereof,   and 
to  injure  and  defraud  this  plaintiff,  they  have  put  up  or 
caused  to  be  put  up  in  similar  packages,  to  wit:  in  glass 
bottles,  labeled  with  nearly  similar  labels,   devices  and 
trade  marks,  and  with  nearly  similar  wrappers  or  circu- 
lars, of  which  false,  and  nearly  similar  labels,  devices, 
trade  marks,  and  wrappers  or  circulars,  specimens  or 
copies  are  hereto  annexed,  and  made  part  of  this  com- 
plaint,  marked    "  Exhibit  C,"    and    "  Exhibit  D,"   the 
first  being  a  copy  of  the  spurious  label,  and  the  second 
a  copy  of  the  spurious  wrapper  or  circular. 

VI.  That   said   last    mentioned    and    nearly   similar 
labels,  devices,  trade  marks,  and  wrappers  or  circulars, 
are  fraudulent,  counterfeit  and  spurious  imitations  of  the 
plaintiff's  labels,  devices,  trade  marks,  and  wrappers  or 
circulars;  and  that  the  defendants  have,  and  at  all  times 
when  selling  or  preparing  any  of  said  imitations  of  said 
article  have  had  full  knowledge,  and  are  and  have  been 
advised    and    informed,  that   the    said    imitated   labels, 


FOR    INJUNCTION.  463 

devices,  trade  marks,  and  wrappers  or  circulars,  are  and 
have  been  pirated  or  simulated  and  fraudulent  counter- 
feits of  the  labels,  devices,  trade  marks,  wrappers  and 
circulars  invented,  composed,  and  adopted  by  this 
plaintiff  as  aforesaid;  all  of  which  will  more  fully  appear 
by  reference  to  the  exhibits  hereto  annexed  and  here- 
inbefore referred  to. 

VII.  That  said  imitations  and  counterfeits  are  calcu- 
lated   to    deceive    the   purchasers    and   consumers    of 
plaintiff's  said  article,  and  the  public  in  general,  and 
actually  have  misled,  and  do   still    and   now   mislead 
many  of  them  to  buy  and  purchsse  the  articles  offered 
for  sale  and  sold  by  the  defendant,  in  the  belief  that  it 
is  the  article  manufactured  by  the  plaintiff,  and  greatly 
to    the   diminution    and   damage    of  the   business  and 
profits  of  this  plaintiff. 

VIII.  And   further,    the   plaintiff    alleges   that   the 
article  so  prepared  and  put  up  and  sold  by  the  defend- 
ant,  in  imitation  of  the  plaintiff's  article,  is  a  greatly 
inferior  article,  and  that  by  reason  of  the  premises  the 
general  esteem  and  reputation  of  the  said  article  manu- 
factured by  the  plaintiff  has  been  injured  greatly,  to  the 
diminution  and  damage  of  the  business  and  profits  of 
this  plaintiff. 

IX.  And  further,  that  the  defendant  for  a  long  time 
past  hath  caused,  and  does  still  cause  an  advertisment, 
a  copy  of  which  is  hereto  annexed,  and  made  a  part  of 
this  complaint,   marked   "  Exhibit  C,"  to  be  published 

in  the  daily ,  and  various  other  newspapers 

published  in  said  City  of ,  and  like  advertise- 
ments   in    many   other    newspapers    throughout    the 
State  of ,  all  of  which  actings,  doings,  adver- 


464  FORMS    OF    COMPLAINTS. 

tisings  and  publications  are    contrary  to   equity,   and 
greatly  injure  and  damage  said  plaintiff. 

X.  And  plaintiff  further  shows  that  the  defendant 
has  shipped  and  does  still  ship  large   quantities  of  the 
said  imitation   so   prepared  and  put  up  by  them,  to  be 
carried  and  offered  for  sale  and  sold  out  of  this  State, 
to .  the  great  diminution  and  damage  of  the   business 
and  profits  of  this  plaintiff. 

XI.  And  plaintiff  further  shows  that,  although  before 
the  commencement  of  this  action  the  plaintiff  repeatedly 
requested    the    defendants     to    desist    from  preparing, 
making,   putting  up,  offering  for  sale  and  selling  said 
imitation,  and  from  simulating,  counterfeiting,  imitating, 
and    infringing    the    plaintiff's    labels,    devices,    trade 
marks,  and  wrappers  or  circulars,  and  from  publishing- 
or  causing  to  be   published  in  the  newspapers  of  this 
State,  or  any  of  them,  the  advertisement  hereinbefore 
referred  to  or  any  similar  one,  and  from  shipping  any 
of  said  imitation,  and  carrying  and  offering  the  same 
for  sale,  and  selling  the  same  out  of  this  Sate,  yet  the 
defendant  has  heretofore  refused  and  does  still  refuse 
so  to  do,  but  threatens  to  continue  to  do  as  he  has 
heretofore  done,  and  as  he  is  hereinbefore  alleged  to 
have  done. 

XII.  That  by  reason  of  the  premises  he  has  been 
injured    and    sustained    damage    of    the    amount    of 
dollars. 

XII.  And  plaintiff  further  shows  that  he  is  without 
any  adequate  remedy  at  law  for  the  grievances,  wrongs, 
injuries  and  frauds  so  practised  upon  him  by  the  defend- 
ant aforesaid,  and  is  entirely  remediless  without  the 
equitable  interposition  of  the  courts. 

[Demand  of  Judgment '.] 


FOR    INJUNCTION.  465 

16.  Form. — This  was  the  complaint  in  the  case  of  (Fish  v.  Red- 
dington,  31  Cal.  187),  and  is  certainly  too  lengthy  for  imitation.     It 
is  given  because  it  presents  nearly  all  the  issues  which  it  is  possible  for 
a  bill  of  that  character  to  present. 

17.  Action  Lies. — An  injunction  may  be  granted  to  restrain  the 
use  of  a  trade  mark — e.g.,  to  restrain  the  publication  of  a  paper  under 
the  same  name  as  the  paper  of  the  plaintiff.     (See  8  Paige  Ch.  Rep. 
75;  also  ./&/>&  Rep.  347.)  To  prevent  the  publication  of  private  correspond- 
ence, see  (3  Edw.  Ch.  Rep.  515.)      To  restrain  parties  from  using 
the  name  chosen  and  used  by  plaintiff  for  his  inn.     (3  Sand/.  Rep. 
725.)     As  to  the  infringement  of  trademarks,  see,  generally,  (2  Bosw.  i ; 
25  Barb.  417;  2  Sand.  605;  2  Sand.  Ch.  586;  Id.  613.)     For  fraudu- 
lent change  of   trademark,  injunction   will  be   granted.     (Gillott  v. 
Kettle,  3  Duer,  626;  Lemoine  v.  Ganton,  2  E.D.  Smith,  347.)     And 
mere  colorable  differences  will  not  in  general  prevent  an  injunction  from 
issuing.     (Williams  v.  Johnston,  2  Bosw.  6;  Clark  v.  Clark,  25  Barb. 
78;  Brooklyn  Lead  Co.  v.  Masury,  Id.  418;  A.  Co.  v.  Spear,  2  Sand. 
608.)     The  Court  will  consider  the  effect  on  the  public,  rather  than  on 
manufactures,  if  the  article  is  of  such  a  kind  that  the  public  would  be 
apt  to  purchase  upon  the  strength  of  the  trade  mark.     Shrimpton  v. 
Laight,  1 8  Beav.  164. 

18.  Action  will  not  Lie. — An  injunction  will  not  be  granted  to 
assist  a  wrong  doer — e.g.,  to  a  plaintiff  who  is  himself  counterfeiting 
another  man's  mark,  so  as  to  give  him  exclusive  power  to  deceive. 
(Samuel  v.  Berger,  4  Abb.  Pr.  88;  Partridge  v.  Mench,  2  Sand.  Ch.  622;  i 
How.  Cases,  548;  Stewart  v.  Smithson,    i   Hilton,  121.)     Nor  in  case 
plaintiff  is  in  any  wise  imposing  by  fraudulent  statements  on  the  public 
concerning  the  matter.  (19  How.  Pr.  571;  ^Abb.Pr.m;  6  Beav.  76;  but 
see  4  Abb.  Pr.  156;  and  Comstock  v.  White,  N.Y.  Trans.,  Feb.  17,  1860, 
conlra.}     And  where  plaintiff  falsely  stamped  his  production  with  the 
word  "patented,"  an  injunction  for  his  protection  was  refused.     (Flavel 
v.  Harrison,  10  Hare,  471,  472.)     But  in  a  case  where  the  article  had 
really  been  patented,  and  the  patent  had  expired,  the  plaintiff  continu- 
ing the  use  of  the  old  label,  including  the  word  '"patented,"  this  was  held 
justifiable,   and  no  ground   for  denying  an  injunction  for  plaintiff's 
benefit,     (n  Hare,  86.)     And  the  plaintiff  may  even  use  a  fictitious 
name,  and  be  protected  in  it.     (Stewart  v.  Smithson,  i  Hilton,  121.)    If 
the  facts  are  doubtful,  or  if  the  case  is  for  any  reason  not  a  clear  one, 
injunction  should  not  be  granted  before  a  verdict  upon  the  issues, 

30 


466  FORMS   OF    COMPLAINTS. 

(iZHow.Pr.  69;  4  Abb.  Pr.  88;  Id.  161 ;  2 Id.  326;  2  Sand. 618;  2 
156;  2  S<z«</.  C».  628;  39  Eng.  L.&E.  514;  S.C.,  4  Kay  &  J. 
650.)  But  security  may  be  required  for  an  accounting.  Fetidge  v. 
Merchant,  4  Abb.  Pr.  161;  Spothiswood  z>.  Clark,  2  Philips,  156. 

20.  Allegation  in  Case  of  a  Periodical  Publication.— That 

he  is  the  proprietor  and  publisher  of  a  newspaper  [or  magazine,  or  other 
periodical],  at ,  known  and  distinguished  as  [name  of  publica- 
tion]; and  that  as  such  proprietor  he  has  published  the  same  daily  [or 

otherwise]  for years  last  past,  and  that  such  publication  has 

been  made  by  the  plaintiff,  and  those  through  whom  he  purchased  the 
same,  as  the  owners  and  proprietors  thereof,  since  the  original  establish- 
ment of  the  same,  in  the  year  . . . . ,  under  the  name  of 

21.  Common  Law  Rule. — By  the  common  law,  the  manufac- 
turer of  goods,    or  the   vendor  of  goods  for  whom  they  have  been 
manufactured,  has  a  right  to  designate  them  by  some  peculiar  name, 
symbol,  figure,  letter,  form  or  device,  whereby  they  may  be  known  in 
the  market  as  his  own,  and  be  distinguished  from  other  like  goods 
manufactured  or  sold  by  other  persons;  and,  when  original  with  him, 
the  owner  of  such  mark  will  be  protected  by  the  courts  in  its  exclusive 
use,  but  only  so  far  as  it  serves  to  indicate  the  origin  and  ownership  of 
the  goods  to  which  it  is  attached,  to  the  exclusion  of  any   symbols, 
figures,  and  combinations  of  words  which  may  be  interblended  with  it, 
indicating   their   name,  kind,  or    quality.      Falkinburg   v.  Lucy,    35 
Cal.  52. 

22.  Imitation  of  Label. — In  an  action  to  recover  damages  for 
an  alleged  invasion,  by  imitation  of  the  plaintiff's  trade  mark  for  the 
sale  of  a  certain  washing  powder,  which  consisted  of  a  highly  colored 
picture  representing  a  wash-room,  with  tubs,  baskets,  clothes  lines,  etc.; 
also  the  following  legend  interblended  on  it:  "Standard  Soap  Company, 
Erasive  Washing  Powder,"  followed  by  directions  for  the  use  of  the 
"washing  powder,"  and  the  place  of  manufacture,   the  alleged  imi- 
tation by  defendants  consisted  of  a  picture  and  label  which  were  the 
same  as  in  plaintiff's  alleged  trade  mark  only  in  the  use  of  the  words 
"washing  powder,"  the  direction  for  the  use  of  the  powders,  and  in  use 
of  paper  of  the  same  color  as  that  used  by  plaintiff:  Held,  that  this  did 
not  constitute  an  infringement  of  plaintiff's  trade  mark.     (Falkinburg 
v.  Lucy,  35  Cal.   52.)     The   action  may  be  maintained  against  the 
vendor  of  the  simulated  article,  though  he  sells  it  as  an  imitation.   (Coats 


FOR    INJUNCTION.  467 

v.  Holbrook,  2  Sand/.  Ch.  586.)  It  is  sufficient  to  show  the  fact  of 
falsity,  and  that  the  effect  will  necessarily  be  to  deceive.  (Peterson  v, 
Humphrey,  4  Abb.  Pr.  394.)  But  the  plaintiff  himself  must  be  free 
from  fraud  in  the  business  which  he  seeks  to  ^protect.  (Pidding  v. 
How,  8  Sim.  477;  Perry  v.  Trufitt,  6  Beav.  66;  Motley  v.  Downman, 

3  Myl.  <Sf  C.  i;  Fetridge  v.  Wells,  4  Abb.  Pr.  144;  Samuel  v.  Berger, 

4  Id.  88;  Partridge  v.  Menck,   i  How.  App.  Cos.  547;  compare  Fet- 
ridge v.  Merchant,  4  Abb.  Pr.  156.)     Where  a  party  has  a  right  to  the 
exclusive  enjoyment  of  a  trade  mark,  it  is  not  necessary  for  him  to  show, 
in  order  to  make  out  a  case  for  an  injunction,  that  it  has  been  copied  in 
every  particular  by  the  defendant.    It  is  enough  that  the  representatives 
employed  bear  such  resemblance  to  his  as  to  be  calculated  to  mislead 
the  public  generally.     Walton  v.  Crowley,  3  Blatchf.  40. 

23.  Manufacturer. — A  manufacturer  will  be  protected  in  the 
use  of  his  own  name.     19  How.  Pr.  14;    but  see,  contra,   i  Johns. 
Eng.  1,174. 

24.  Name,  Use  of. — And  so  if  defendant's  real  name  be  used 
in  such  a  manner  as  is  likely  to  mislead  and  deceive,  an  injunction  will  be 
allowed.     Thus,  where  a  hotel  had  been  kept  for  many  years  by  one 
Lovejoy,  and  after   his  death  by  other  persons  using  still  the  name 
"Lovejoy's  Hotel,"  another  Lovejoy  opened  a  hotel  under  the  title 
"  Lovejoy  House."    He  was  restrained  from  so  doing.      So,  where  the 
"Irving  Hotel"  was  opened  in  opposition  to  the  "Irving  House,"  and 
where  the  "  Original  What  Cheer  House  "  was  opened  in  opposition  to 
the  "  What  Cheer  House,"  injunction  issued,  restraining  the  use  of  the 
titles  "Irving"  and  "What  Cheer,"  respectively.    Woodwards.  Lazar, 
21  Cal.  448. 

25.  Origin,  not  Quality. — A  trade  mark  must  indicate  origin, 
not  quality.    So,  any  words  of  common  use  in  connection  with  goods, 
such  as  "No.  i,"  "  premium,"  "best,"  etc.,  etc.,  cannot  become  exclu- 
sive property,  under  guise  of  a  trade  mark.     (A.  Co.  v.  Spear,  2  Sand. 
606;    and  see  17  Barb.  608.)      But  such  common  words  if   so  put 
together,  in  form,  color,  and  appearance,  that  they  are  likely  to  deceive, 
will  be  enjoined.     Williams  v.  Johnson,  2  Bosw.  9. 

26.  Owner  of  Vessel. — The  protection  of  a  court  of  equity,  in 
the  matter  of  injunction,  is  not  confined  to  injunction,  but  has  been  ex- 
tended to  the  owners  of  lines  of  vehicles;  (Stone  v.  Carlan,  3  N.F. 
Code  Reports,  68;  Knott  v.  Morgan,  2  Keen,  213;  7  Cush.  322;)  and  to 


468  FORMS    OF     COMPLAINTS. 

hotel  keepers;  (3  Sand.  725;  21  Cal.  448,  etc.,  before  cited;)  and  to  pro- 
prietors of  places  of  amusement;  (Christy  v.  Murphy,  12  How.  Pr.  77;) 
and  to  the  proprietor  of  a  dining  saloon  whose  sign  was  counterfeited  by 
the  owner  of  a  neighboring  saloon;  (N.Y.  Trans.  Jan.  10,  1861;)  and 
to  publishers  whose  publications  have  been  imitated.  Hogg  v.  Kirby,  8 
Ves.  215;  Beel  v.  Lock,  8  Paige,  75;  Snowden  v.  Noah,  Hopk.  347. 

27.  Prior  Use  of  Words. — Injunction  will  not  be  granted  if  the 
words  used  are  such  as  have  been  or  might  reasonably  have  been  used 
to  designate  the  article  before  plaintiff  adopted  them  as  his.     Wolfe  v . 
Goulard,   18  How.  Pr.  64;  17  Law.  &•  Eq.  (Eng.)  257;    3  De  Gex, 
M.  &  G.  896. 

28.  Same  Name. — Two  manufacturers  of  the  same  name  must 
use  their  names  in  such  a  manner  as  not  to  deceive  the  public.     Every 
man  has  a  right  to  the  use  of  his  own  name,  but  he  must  avoid  imitating 
the  mark  of  another  bearing  the  same  name.     (Clark  v.  Clark,  25  Barb. 
79;  Rogers  v.  Nowill,  3  De  G.,  M.  &  G.  614;   Croft  v.  Day,  7  Beav. 
84;  Taylor  v.  Taylor,  23  Eng.  L.  Eq.  281;    23  Law  Journal  (Ch.) 
255;  Sykesz/.  Sykes,  3  Barn.  &  Cor.  541;  5  Dowl.  & Ryl.  292.)   And 
the  assignee  of  a  trade  mark  will  be  protected  under  the  same  rule, 
either  against  another  person  of  the  same  name,  or  against  the  assignor 
himself.    (  i  Johns.  Eng.  174.)     But  the  legitimate  use,  by  any  man,  of 
his  own  name  cannot  be  interfered  with.  3  De  Gex,  M.  <Sf  G.  904 ;  1 7 
Eng.  L.  &  Eq.  257. 

29.  Statute  Rules. — By  the  terms  "  peculiar  name,  letters,  mark, 
devices,  figures  or  other  trade  mark  or  name,"  as  used  in  the  statute 
concerning  trade  marks  (Hiltel's   General  Laws,  Art.    7,135),  is  not 
meant  the  established  and  proper  names  by  which  the  "articles"  are 
known   in   the   market,    nor  something  indicating  their   actual  kind, 
character  or  quality,  but  by  them  is  meant,  as  the  subjects  of  protection 
against  infringement,  something  new,  not  before  in  use,  something  of 
the  manufacturer's  own  invention  or  first  put  to  use  by  him,  something 
peculiar  to  him  and  not  common  to  him  and  others,  something  which 
is  intrinsically  foreign  to  the  "articles"  themselves,  and  only  serves  to 
designate  them  because  it  has  been  fancifully  put  to  that  use  in  disre- 
gard of  all  natural  reality.     (Falkinburg  v.  Lucy,  35  Cal.  52.)     The 
statute   does  not  vest  in  the  manufacturer  or  vendor,  as  the  case  may 
be,  any  exclusive  property  in  the  articles    manufactured  or  sold,  nor 
in  their  names  or  the  words  which  most  aptly  and  properly  describe 
them,  the  plaintiffs  having  no  patent  for  the  manufacturing  and  sale  of 


FOR    INJUNCTION.  469 

the  compound  in  question;  and  even  if  such  were  the  proper  con- 
struction of  the  statute,  it  would  be  void  for  want  of  power  in  the 
Legislature  to  enact  it.  If  the  statute  goes  beyond  the  common  law 
and  embraces  within  its  protection  matter  which  relates  to  kind, 
character,  or  quality  of  "articles,"  it  is  not  perceived  why  it  does 
not  trench  upon  the  law  of  copy  and  patent  rights,  and  is  therefore 
void.  It  is  suggested  but  not  decided  that  the  terms  used  in  the 
statute,  to  wit:  "to  designate  it  as  an  article  of  peculiar  kind, 
character,  or  quality,"  were  inadvertently  incorporated  in  it  under 
a  mistaken  notion  of  the  functions  of  a  trade  mark,  and  that  in  respect 
of  those  terms  the  statute  can  have  no  intelligible  operation.  Falkin- 
burg  v.  Lucy,  35  Cal.  52. 


No.  521. 

v.    Against  Purchaser  of  Goods,  and  for  Injunction  Restraining  Sak. 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  [Allege  sale  as  in  Forms  JVo.  106  and  107,  Vol.  /.] 

II.  That  to  induce  the  plaintiff  to  make  said  sale  and 
delivery,  and  with  intent  to  defraud  him  of  said  goods, 
the  defendant  then  falsely  and  fraudulently  represented 

himself  to  the  plaintiff  to  be  worth dollars, 

over  and  above  all  his  just  debts  and  liabilities,  when 
in  truth  he  was  at  the  time  insolvent;  and  that  the  plaintiff 
was  induced  by  said  fraudulent  representations,  to  sell 
and  deliver  to  the  defendant,  and  so  did  solely  on  the 
faith  thereof. 

III.  That  thereafter,  and  with  such  intent,  defendant 

removed  said  goods  to ,  and  as  the  plaintiff  is 

informed  and  believes,  is  about  to  sell  and  dispose  of  the 
same. 

IV.  That  thfe  defendant   is  insolvent,   and,  as  the 
plaintiff  is  informed  and  believes,  a  judgment  against 


47O  FORMS    OF    COMPLAINTS. 

him  will  be  unavailing  and  worthless,  if  he  is  suffered  to 
sell  and  dispose  of  said  goods. 

Wherefore  the  plaintiff  demands  judgment  against  the 

defendant,  for  the  sum  of dollars,  with  interest 

thereon  from  the  said  ....  day  of ,  1 8 . . ,  and 

that  the  defendant  and  his  agents  be  enjoined  from  sell- 
ing, disposing  of,  removing,  or  in  any  wise  interfering 
with  said  goods  or  any  of  them,  until  such  judgment  be 
fully  satisfied. 


30.  Fraudulent  Inducement  to  Sell. — Where  the  buyer 
induces  the  seller  to  contract  to  sell,  by  fraudulent  representations,  upon 
the  truth  of  which  the  seller  relies,  the  buyer  cannot  maintain  an  action 
to  enforce  the  contract.  Smith  v.  Countryman,  30  N.Y.  655. 


No.  522. 

vi.    To  Restrain  Negotiation  of  Bill  or  Note. 

[TlTLE.J 

The  plaintiff  complains,  and  alleges: 

\_Allege  making  of  note,  as  in  Form  No.  435,  Vol.  //.] 

III.    That  the  defendant  still  retains  said  note  in  his 

possession ;  and  though,  on  the  ....  day  of , 

18.  .,  the  plaintiff  requested  him  to  deliver  it  up,  he 
refused  so  to  do. 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  the  defendant  be  enjoined  from  negotiating, 
transferring,  or  enforcing  the  same. 

2.  That  it  be  delivered  up  and  canceled. 

3.  And  for  the  costs  of  this  action. 


FOR    INJUNCTION.  471 

3L  Collection  of  *Note. — Where  suit  is  pending  in  one  court 
on  a  note  of  defendant,  though  no  summons  has  been  served,  and  no 
appearance  made,  he  cannot  bring  a  bill  in  equity  in  another  court,  to 
enjoin  the  collection  of  the  note,  or  to  cancel  it,  the  averment  being 
simply  that  he  has  a  good  defense  to  the  note.  Smith  v.  Sparrow,  1 3 
Cal.  596. 

Jfo.  523. 

vii.  Interpleader. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  before  the  making  of  the  claims  hereinafter 
mentioned,  one  A.  B.  deposited  with  the  plaintiff  [de- 
scribe the  property]  for  [safe  keeping] . 

II.  That  the  defendant  C.  D.  claims  the  same  [under 
an  alleged   assignment  thereof  to  him  from  the  said 
A.Ef.] 

III.  That  the  defendant  E.  F.  also  claims  the  same 
[under  an  order  of  the  said  A.  B.,  transferring  the  same 
to  him]. 

IV.  That  the  plaintiff  is  ignorant  of  the  respective 
rights  of  the  defendants. 

V.  That  he  has  no  claim  upon  the  said  property,  and 
is  ready  and  willing  to,  and  hereby  offers  to  deposit  the 
same  in  court,  or  to  deliver  the  same  to  such  persons 
as  the  Court  shall  direct. 

VI.  That  this  action  is  not  brought  by  collusion  with 
either  of  the  defendants. 

Wherefore  the  plaintiff  demands  judgment: 

i.    That  the  defendant  be  restrained   by  injunction 

from   taking   any  proceedings  against  the  plaintiff  in 

relation  thereto. 


472  FORMS    OF    COMPLAINTS. 

2.   That  they  be  required  to  interplead  together  con- 
cerning their  claims  to  the  said  property. 

[3.   That  some  person  be  authorized  to  receive  the 
said  property  pending  such  litigation.] 

4.  That  upon  delivering  the  same  to  such  receiver 
the  plaintiff  be  discharged  from  all  liability  to  either  of 
the  defendants  in  relation  thereto. 

5.  And  that  the  plaintiff's  costs  be  paid  out  of  the 
same. 

NOTE. — The  above  form  is  from  Abbotts'  Forms,  No.  660. 

32.  By  Tenant. — Where  a  tenant  finds  that  there  are  claim- 
ants to  the  property,  he  should  file  a  bill  of  interpleader,  making 
all  the  adverse  claimants  parties  thereto,  and  offer  to  pay  the  rents  into 
court  to  abide  the  ultimate  decision  of  the  case.  McDevitt  v.  Sullivan, 
£  Cal.  592. 


CHAPTER  VI. 

SPECIFIC     PERFORMANCE. 

No.  524. 

i.     Purchaser  Against  Vendor.  \ 

[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.    That  the  defendant was,  on  or  before  the 

....  day  of ,  1 8 . . ,  seized  and  possessed  of  a 

certain  tract  of  land,  situated  in ,  and  bounded 

and  described  as  follows,  to  wit:  [describe  landJ] 


FOR    SPECIFIC     PERFORMANCE.  473 

II.  That  on  said  day  the  plaintiff  and  said  defendant 
entered  into  a  written  contract  of  lease,  whereby  said 
defendant  did  grant  demise  and  to  farm  let  said  tract  of 

land  to  this  plaintiff  for  the  term 'of years 

thereafter  to  be  fully  completed  and  ended,  in  consider- 
ation of  the  sum  of dollars,  monthly  rent  of 

said  premises,  to  be  paid  therefor  by  the  plaintiff  to  said 
defendant. 

III.  That  in  and  by  said  contract  of  lease,  and  as  a 
part  thereof,  it  was  further  covenanted  and  agreed  that 
the  plaintiff  should  have  the  privilege  of  purchasing  said 
lot  or  tract  of  land,  on  or  before  the  expiration  of  said 

lease,  for  the  sum  of dollars,  in  gold  coin  of 

the  United  States,  which  said  covenant  or  agreement  in 
said  lease  contained,  and  as  part  thereof  as  aforesaid,  is 
as  follows:   [insert  copy  of  covenant, .] 

IV.  That  the  plaintiff,  upon  the  execution  and  deliv- 
ery of  said  lease,  entered  into  and  was  in  the  sole  pos- 
session thereof  up  to  the  present  time,  and  is  now  in 
possession  thereof,  and  during  said  time  he  has  made 
valuable  improvements  thereon,  to  wit:  of  the  value  of 
dollars. 

V.  And  the  plaintiff  further  alleges  that  he  duly  per- 
formed all  the  conditions  of  said  lease  on  his  part  to  be 

performed,  and  on  the    ....    day  of ,   1 8 . . , 

which  day  was  previous  to  the  expiration  of  said  lease, 
the  plaintiff  tendered   to  said   defendant  the   sum  of 

dollars,  in  gold  coin  of  the  United  States,  and 

demanded  from  him  a  conveyance  of  said  premises,  and 
requested  him  specifically  to  perform  his  said  covenant 
or  agreement  to  convey  to  him  said  tract  or  lot  of  land, 
but  that  he  refused  and  ever  since  has  refused  and  still 
refuses  so  to  do. 


474  FORMS    OF    COMPLAINTS. 

VI.  And  plaintiff  avers  that  ever  since  said  tender 

made  as  aforesaid,  to  wit:   on  the  ....  day  of , 

18. .,  he  has  remained  and  still  is  ready  and  willing  to 

pay  to  the  defendant  the  said  sum  of dollars 

in  gold  coin  aforesaid,  and  now  brings  the  same  into  this 
Court  for  that  purpose,  and  has  always  been  and  now 
is  ready  and  willing  to  receive  a  conveyance  of  said 
premises. 

VII.  And  plaintiff  avers  that  by  reason  of  the  breach 
of  the  covenant  to  convey  on  the  part  of  the  defendant 
hereinbefore  set  out,  and  of  his  failure  to  specificially 
perform  the  same,  plaintiff  will  suffer  damages  in  the 
sum  of dollars. 

Wherefore  the  plaintiff  demands  judgment: 

1.  That   the  said  covenant  so  made  between  the 
plaintiff  and  defendant,  hereinbefore  set  out,  may  be 
specificially   performed,   and  that   said  defendants   be 
adjudged  to  sell  and  convey  the  said  premises  to  the 
plaintiff,  and  to  execute  a  good  and  sufficient  deed  there- 
of to  him,  on  payment  by  the  said  plaintiff  of  the  amount 
of  the  purchase- money  aforesaid. 

2.  That  the  said  defendant be  adjudged  to 

account  and  pay  to  the  plaintiff  the  damages  he  has 

sustained  in  such  event,  to  wit,  the  sum  of 

dollars,  or  for  such  other  or  further  relief  as  to  the  Court 
may  seem  just. 


FOR    SPECIFIC    PERFORMANCE.  475 

No.  525. 

ii.     The  Same — Short  Form. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on  the day  of ,  1 8 . . ,  the 

defendant  was  seized  in  fee  simple  of  a  certain  real 
property,  described  in  the  agreement  hereto  annexed. 

II.  That  on  the  same  day  the  plaintiff  and  defend- 
ant entered  into  an  agreement  under  their  hands  and 
seals,  whereby  the  plaintiff  agreed  to  buy,  and  defend- 
ant agreed  to  sell  the  property  described  in  the  agree- 
ment, of  which  the  following  is  a  copy:    \_Copy  agree- 
ment^ 

III.  That  on  the  ....  day  of ,  18.  .,  the 

plaintiff  tendered dollars  to  the  defendant,  and 

demanded  a  conveyance  of  the  said  property. 

IV.  That  the  defendant  has  not  executed  such  con- 
veyance. 

V.  That  the  plaintiff  is  still  ready  and  willing  to  pay 
the  purchase-money  of  the  said  property  to  the  defend- 
ant. 

Wherefore  plaintiff  demands  judgment: 

1 .  That  the  defendant  execute  to  the  plaintiff  a  suffi- 
cient conveyance  of  the  said  property  \_following  the 
terms  of  the  agreement^ 

2.  For dollars    damages   for  withholding 

the  same. 

1.     Award. — Courts  of  equity  may  enforce  a  specific  performance 


476  FORMS   OF    COMPLAINTS. 

of  an  award  respecting  real  estate.  (McNeill  v.  Magee,  5  Mas.  244.) 
J3ut  specific  performance  of  a  mere  agreement  to  submit  to  arbitration 
'•will  not  be  decreed.  (Tobey  v.  County  of  Bristol,  3  Story  C.  Ct.  800.) 
While  a  court  will  not  decree  specific  performance  of  agreement  to 
(appoint  arbitrators  or  appraisers  to  fix  the  value  at  which  property  is  to 
be  sold,  yet,  where  there  has  been  an  acquiescence  in  the  agreement,  or 
such  part  performance  that  it  would  be  inequitable  not  to  enforce  the 
execution  of  such  a  provision,  the  Court  will  ascertain  what  is  the  fair 
value.  6  Mod.  27;  Jerem.  Eg.  442;  Dunnell  v.  Keteltas,  16  Abb.  Pr. 
105;  Kelso  v.  Kelly,  I  Daly,  419. 

2.  Collateral  Security. — Specific  execution  of  an  agreement  to 
give  collateral  security  may  be  decreed.     (3  Atk.  383;  2  Com.  Dig.  340; 
Robinson  v.  Cathcart,  2  Crunch  C.  Ct.  590.)     For  the  rules  applicable 
to  commutative   contracts  in   Louisiana,   see   Hyde  v.  Booraem,   16 
Pel.  169. 

3.  Conditional  Contract. — C.  agreed  in  writing  to  convey  to  F. 
an  undivided  interest  in  a  mining  claim,  upon  the  fulfillment  of  certain 
specified  conditions  to  be  thereafter  performed  by  F.,  and  let  F.  into 
possession.     Thereafter,  on  the  failure  of  C.  to  convey  as  stipulated,  F., 
'who  was  at  the  time  out  of  possession,  brought  ejectment  in  the  usual 
form  to  recover  the  same :  Held,  that  ejectment  would  not  lie,  but  that 
the  appropriate  remedy  of  F.  was  by  action  for  specific  performance, 
and  as  incidental  thereto,  a  delivery  of  possession.     (Felger  v.  Coward, 
35  Cal.  650.)     If  one  who  has  agreed  to  convey  bonds  with  release  of 
dower  is  unable  to  procure  a  release  of  dower,  the  purchaser  is  entitled 
to  a  conveyance  without  such  release  of  dower,  with  an  abatement  from 
•the  purchase-money  of  the  wife's  interest  at  the  time  of  the  conveyance. 
Davis  v.  Parker,   14  All.  94;  see  Hawralty  v.  Warren,  3  C.  E.  Green, 
124;  3  Am.  Law  Rep.  483. 

4.  Conditions  Precedent. — Where  the  purchaser  covenants  to 
pay  the  purchase-money,  and  the  vendor  covenants  to  convey  at  the 
time  of  payment,  the  contract  is  mutual  and  dependent,  and  neither  can 
sue  without  averring   performance.      (Hill  v.  Grigsby,  35  Cal.   656.) 
Where  the  purchase-money  is  payable  in  installments,  and  the  convey- 
ance to  be  executed  on  the  last  day  of  payment,  or  on  payment  of  the 
whole  price,  or  at  any  previous  day,  the  covenants  to  pay  the  sums 
falling  due  before  the  execution  of  the  conveyance  are  independent 
covenants.     (Hill  v.  Grigsby,  35  Cal.  656.)     But  those  falling  due  after 


FOR    SPECIFIC    PERFORMANCE.  477 

the  day  for  execution  of  the  conveyance  are  dependent.  (Id.}  So  far 
as  the  first  and  second  installments  are  concerned,  the  promises  of  the 
defendant  are  independent,  and  performance  by  the  plaintiff  is  not  a 
condition  precedent,  and  therefore  a  willingness  on  his  part  to  perform 
need  not  have  been  averred.  Bean  v.  Atwater,  4  Conn.  3;  Osborn  z>. 
Elliot,  i  Cal.  337;  Folsom  v.  Bartlett,  2  Id.  163;  Barren  v.  Frink,  30 
Id.  486;  2  Smith's  Leading  Cases,  note  to  Cutter  v.  Powell,  p.  22;  Hill 
v.  Grigsby,  35  Cal.  656;  Rourke  v.  McLaughlin,  Cal.  Sup.  Cl.,Jul.  T., 
1869. 

5.  Contract  must  be  Certain. — The  performance  of  a  con- 
tract must  be  decreed,  according  to  its  terms.     (Hepburn  v.  Dunlop,  I 
Wheat.  179;  Bowen  v.  Waters,  2  Paine  i;  Oakley  v.  Ballard,  Hempst. 
475.)     And  specific  performance  will  not  be  decreed  unless  the  terms 
of  the  contract  are  clear,  definite,  and  positive.     (Kendall  v.  Almy,  2 
Sumn.  278.)     Courts  of  equity  will  not  attempt  to  enforce  vague  and 
shadowy  claims.     Doe  v.  Culverwell,  35  Cal.  291. 

6.  Contract  must  be  Complete. — Specific  performance  will 
not  be  decreed,  if  it  be  doubtful  whether  an  agreement  has  been  con- 
cluded, especially  if  the  party  has  done  nothing  under  it.     Carr  v, 
Duval,  14  Pet.  77. 

7.  Contract  must  be  Mutual. — A  contract  to  be  obligatory  on 
either  party  must  be  mutual  and  reciprocal.     (Doe  v.  Culverwell,  35 
Cal.  291.)     Performance  will  not  be  decreed,  where  only  a  part  of  the 
vendors  are  bound  for  the  title,  and  there  is  a  want  of  mutuality. 
(i    Johns.   Ch.  370;  2  Id.   282;  6  Paige,  288;  Bronson  v.  Cahill,   4 
McLean,  19.)     But  the  contract  becomes  mutual  by  the  act  of  filing  the 
complaint,  where  the  action  is  brought  against  the  one  who  signs  the 
memorandum.     (See  5  N.Y.  246;  Joseph  v.  Holt,  Cal.  Sup.  Ct.,  Ap. 
T.,   1869;    Rogers  v.  Saunders,   16  Maine,  92;  Coleman  v.  Upcot,  5 
Vtner,  527;  Owens  v.  Davis,  i  Ves.  82;  see,  also,  Buckhouse  v.  Crosby, 
2  Eng.Eq.  Cas.  Air,,  32;  Hatton  v.  Gray,  2  Chancery  Cad.  164;  i  Eng. 
Eq.  Cas.  Abr.   21.)     It  is  not  necessary  that  the  written  agreement 
should  be  signed  by  the  party  seeking  to  enforce  it.    If  the  agreement  is 
certain,  fair,  and  just  in  all  its  parts,  and  signed  by  the  party  sought  to 
be  charged,  that  is  sufficient;  the  want  of  mutuality  is  no  objection  to 
its  enforcement.     (2  Story's  Eq.  J.  §  736;  3  Sandf.  Ch.  292;  i  Edw. 
Ch.  i;  1 6    Wend.  460;  4  Johns.  484;  White  v.  Schuyler,  i  Abb.  Pr. 
(N.S.)  300;  S.C.,  31  How.  U.S.  38;  Muller  v.  Vettel,  25  How.  Pr. 
350.)    It  is  of  no  consequence  if  the  note  or  memorandum  purports 


478  FORMS   OF     COMPLAINTS. 

to  be  in  the  language  of  the  vendor  or  the  vendee,  or  both.  If  it  pur- 
ports to  be  in  the  language  of  the  vendee,  it  is  none  the  less  a  note  or 
memorandum  stating  the  names  of  the  parties,  and  expressing  the  con- 
sideration. By  subscribing  such  a  note  or  memorandum,  the  vendor 
vouches  for  the  truth  of  the  facts  therein  stated,  and  if  need  be  adopts 
it  as  his  own.  (Joseph  v.  Holt,  CaL  Sup.  Ct,  ApL  T.,  1869.)  It  there- 
upon ceases  to  be  the  separate  statement  of  the  vendee,  and  becomes 
the  joint  act  of  both.  (Id.)  An  ex  parte  or  unilateral  statement  or 
proposition  will  not  raise  a  contract;  but  such  a  memorandum  is  not 
such  a  unilateral  statement,  since  it  is  but  a  statement  of  what  has 
already  transpired  by  one  party,  shown  by  him  expressly,  and  by  the 
other  by  implication  and  assent  to;  by  the  latter,  by  the  act  of  subscrib- 
ing his  name.  (Joseph  v.  Holt,  CaL  Sup.  Ct.,  ApL  T.,  1869.)  It  is  a 
statement  as  evidence  of  a  contract  already  made,  and  not  a  mere  prop- 
osition to  sell  or  buy;  a  mere  memorandum  to  satisfy  the  Statute  of  Frauds, 
and  it  is  sufficient  for  that  purpose,  for  it  shows  a  sale  and  the  parties  to  it, 
expresses  the  consideration,  and  is  subscribed  by  both  parties.  (Id.) 
If  the  language  of  the  note  should  be,  H.  has  purchased  from  J.,  it 
would  include  the  statement  of  both  a  purchase  by  H.  and  a  sale  by  J., 
since  the  expression,  I  (H.)  have  purchased  from  J.,  includes  the  equiv- 
alent expression,  J.  has  sold  to  me  (H.)  Joseph  v.  Holt,  CaL  Sup. 
Ct.,  ApL  T.,  1869. 

8.  Contract  must  be  Reasonable. — Specific  performance  will 
not  be  enforced  where  the  contract  is  unreasonable,  or  where  from  sur- 
prise it  is  inequitable  to  enforce  its  execution.     (Bowen  v.  Waters,  2 
Paine  i ;  Thompson  v.  Todd,  I  Pet.  C.  Ct.  380;  Surget  v.  Byers,  Hempst. 
715.)    Or  where  the  contract  is  one  of  great  hardship.    (King  v.  Ham- 
ilton, 4  Pet.  311.)     Mere   excess   of  price   over  value   (Cathcart  v. 
Robinson,   5  Pet.  264;    2  Brock.  Marsh.   185),  or   mere  inadequacy 
of  price,  does  not  furnish  cause  for  dismissal  of  the  bill.     (Erwin  v. 
Parham,  1 2  How.  Pr.  1 97.)     In  what  cases  specific  performance  may  be 
enforced,  see  Pennsylvania  Coal  Co.  v.  Delaware  and  Hudson  Canal  Co., 
31  N.Y.  91. 

9.  Contract  to  Release  Mortgage. — A  party  who  is  entitled  to 
a  specific  execution  of  an  agreement  to  release  the  land  from  the  lien 
of  a  mortgage,  may  maintain  a  suit  for  that  purpose,  notwithstanding 
before  the  filing  of  the  bill  he  had  conveyed  away  the  land,  such  con- 
veyance being  with  warranty.     (4  N.Y.  403;  Bennett  v.  Abrams,  41 
Barb.  619.)    An  agreement  that  the  holder  of  a  second  mortgage, 


FOR    SPECIFIC     PERFORMANCE.  479 

should  foreclose  his  mortgage,  and  if  he  should  buy  at  the  foreclosure 
pay  a  sum  on  account  of  the  first  mortgage,  may  be  enforced.  Living- 
ston v.  Painter,  19  Abb.  Pr.  28;  28  How.  Pr.  517;  43  Barb.  270;  see, 
also,  McLallen  v.  Jones,  20  N.Y.  162. 

10.  Contract  to  Transfer  Stock.— The  agreement  to  transfer 
stock  may  be  enforced  where  the  contract  to  convey  is  clear,  and  the 
uncertain  value  of  the  stock  renders  it  difficult  to  do  justice  by  an  award 
of  damages.     2  Barb.  609;  2  Sto.  Eq.  §  716,  718;  6  Johns.  Ch.  222; 
3   Cow.  445;   White  v.  Schuyler,  i   Abb.  Pr.  (N.S.)  300;    31  How. 
Pr.  38. 

11.  Contract  of  Ancestor. — Proceedings  may  be  had  to  compel 
a  specific  performance  of  a  contract  of  ancestor.     Hyatt  v.  Seely,  1 1 
N.Y.  52. 

12.  Covenant  to  Renew. — A  court  of  equity  can  compel  the 
specific  performance  of  an  absolute  covenant  to  renew  a  lease,  at  a  rent 
to  be  fixed  by  arbitrators.     (Johnson  v.  Conger,  14  Abb.  Pr.  195.)     On 
a  lease  from  W.  to  H.  was  indorsed,  "that  at  the  expiration  of  the  said 
term,  H.  shall  have   the  privilege  of  purchasing   the  whole  of  said 
premises,"  at  a  fixed  price.     H.  brought  a  bill  demanding  a  marketable 
title.    W.'s  wife  refused  to  join  in  the  conveyance,  but  no  collusion  with 
her  husband  was  shown.     Held,  that  W.  was  not  bound  to  idemnify  H. 
against  wife's  claim,  and  specific  performance  was  refused.     (Hawralty 
i).  Warren,  3  C.  E.  Green,  124.)     Where  a  lease  gives  the  lessee  the 
privilege  of  purchasing  the   land  on  certain   terms,  the  privilege  is 
limited  to  the  whole  land,  and  the  lessee,  or  a  purchaser  from  him  of  a 
portion  of  the  land,  cannot  claim  the   rights  to  buy   that  portion. 
(Hitchcock  v.  Page,  14  Cal.  440.)    See,  as  to  effect  of  such  a  covenant, 
De  Rutte  v.  Maldrow,  16  Cal.  505. 

13.  Demand. — It  is  held  that  a  reasonable  time  must  be  given 
after  a  demand  to  prepare  a  deed,. arid  by  the  allegation  of  a  second 
demand  the  reasonable  time  may  be  shown.    (Lutweller  v.  Linnell,  12 
Barb.  512;  Connelly  v.  Pierce,  7    Wend.   130;    Hackett  v.  Huson,  3 
Wend.  250;  Fuller  v.  Hubbard,  6  Cow.  17.)     But  if  the  vendor  on  the 
first  demand  positively  refuses,  no  further  demand  is  necessary.     (Car- 
penter v.  Brown,  6  Barb.  147;  Driggs  v.  Dwight,  17   Wend.  74.)      In 
an  action  for  the  specific  performance  of  a  trust,  by  the  execution  of  a 
deed,  a  demand  therefor  before  suit  is  only  material  as  effecting  costs. 
Jones  v.  City  of  Petaluma,  36  Cal.  230. 


480  FORMS    OF    COMPLAINTS. 

14.  Departure  from  Contract. — Trivial  departures  from  the 
contract  will  not  affect  the  right  to  enforcement  of  a  specific  perform- 
ance.    Secombe  v.  Steele,  20  How.  Pr.  94. 

15.  Facts,  how  Alleged. — A  complaint  should  state  expressly, 
in  direct  terms,  the  facts  constituting  the  cause  of  action,  leaving  no 
essential  fact  in  doubt,  or  to  be  inferred  or  deduced  by  argument  from 
the  facts  which  are  stated;  and  where  the  memorandum  only  raises  an 
implication  of  the  terms  of  the  contract,  as  of  the  undertakings  of  the 
parties,  the  consideration,  etc.,  and  the  complaint  fails  elsewhere  to  dis- 
tinctly aver  them,  it  is  bad.      (Joseph  v.  Holt,  Cal.  Sup.  Ct.,  Apr.  T., 
1869.)      Inference,  argument,  or  hypothesis  cannot  be  tolerated  in  a 
pleading.      (Green  v.  Palmer,  15  Cal,  411;  Joseph  v.  Holt,  Cal.  Sup. 
Ct.,  Apr.  T.,  1869.)     The  rule  which  permits  the  pleader  to  declare 
upon  a  contract  in  hcec  verba  is  limited  to  cases  where  the  instrument 
set  forth  contains  a  formal  contract.     (Joseph  v.  Holt,  Cal.  Sup.  Ct., 
Apl.  T.,  1869.)     To  extend  the  rule  to  mere  notes  or  memoranda  made 
as  evidences  of  the  terms  of  a  contract  sufficient  to  take  it  out  of  the  Statute 
of  Frauds,  would  be  to  substitute  inference  and  argument  for  facts.     Id. 

16.  Gold  and  Silver  Coin. — A  contract  to  pay  money  in  gold 
and  silver  coin  cannot  be  specially  enforced,  nor  can  any  other  damages 
be  recovered  upon  its  breach,  except  interest.     (Wilson  v.  Morgan,  i 
Abb.  Pr.  (N.S.)  174;  S.C.,  30  How.  Pr.  386.)     So  of  an  award  to  pay 
in  gold  coin.     (Howe  v.  Nickerson,  14  All.  400;  see  Tuffts  v.  Ply- 
mouth Gold  Min.  Co.,  14  All.  407.)      The  rule  is  different  in  Califor- 
nia, if  the  memorandum  provides  for  payment  in  gold  arid  silver  coin. 
Where  a  party  who  has  executed  a  deed  to  lands  to  secure  the  per- 
formance of  his  agreement,  not  in  writing,  as  to  pay  a  certain  sum  of 
money  in  gold  coin,  and  who  seeks  the  aid  of  a  court  of  equity  to  have 
the  deed  declared  a  mortgage,  and  to  be  permitted  to  redeem  and  have 
a  conveyance  of  the  land,  ought  to  be  held  to  a  full  compliance  with 
the  terms  of  the  agreement  as  a  condition  precedent  to  the  conveyance, 
and  this  by  no  construction  of  the  specific  contract  act,  but  by  the  appli- 
cation of  the  maxim  that  "  he  who  seeks  equity  should  do  equity." 
Cowing  v.  Rogers,  34  Cal.  648. 

17.  Imposing    Terms. — When  it  would  be  unconscientious  to 
enforce  a  specific  performance  according  to  the  letter,  it  may  be  refused, 
unless  the  complainant  will  comply  with  certain  modifications.     Me- 
chanics' Bank  of  Alexandria  v.  Lynn,  i  Pet.  376. 


FOR    SPECIFIC    PERFORMANCE.  481 

18.  Inability  to  Make   Title. — Where  the  vendor  could  not 
make  a  good  title,  he  cannot  enforce  the  specific  performance  of  the 
contract  by  the  vendee.     (Stevenson  v.  Buxton,  15  Abb.  Pr.  352;  Mor- 
gans. Morgan,  2  Wheat.  290;  Watts  v.  Waddle,  6  Pet.  389;   affirming 
i  McLean,  200.)     And  his  ability  to  make  title  must  be  unquestionable. 
(Garnett  v.  Macon,  2  Brock.  Marsh.  185.)     And  title  must  be  to  all  the 
lands  embraced  in  the  contract.      (Hepburn  v.  Auld,  5  Cranch,  262; 
Sohier  v.  Williams,  i  Curtis  C.  Ct.  479-)     But  where  there  is  simply  a 
deficiency  in  quantity,  a  specific  performance  may  be  decreed  upon  the 
principle  of  compensation.    (Hepburn  v.  Auld,  5  Cranch,  262.)    As  to 
where  there  is  an  excess  of  land,  see  King  v.  Hamilton,  4  Pel.  311. 

19.  Jurisdiction. — A  bill,  quia  timet,  and  to  enforce  the  specific 
execution  of  an  agreement,  lies  only  where  there  is  no  adequate  remedy 
at  law.     But  where  the  damages  resulting  from  a  breach  of  such  agree- 
ment are  susceptible  of  precise  admeasurement,  equity  will  not  take 
jurisdiction  unless  there  are  some   peculiar  equitable  circumstances. 
(White  v.  Fratt,  13  Cal.  525.)  The  execution  of  a  contract  fairly  and 
legally  entered  into  is  one  of  the  peculiar  branches  of  equity.     Jurisdic- 
tion and  a  court  of  equity  will  compel  a  delinquent  party  to  perform  the' 
agreement  according  to  its  terms  and  the  manifest  intention  of  the  par- 
ties.     (Hunt  v.  Ronsmaniere,  i  Pet.  i.)      And  the  jurisdiction  having 
once  attached,  the  court  will  go  on  and  do  complete  justice.     (Cathcart 
v.  Robinson,  5  Pet.  264;  Clarke  v.  White,  12  Id.  178.)      But  a  specific 
performance  of  a  contract  respecting  a  chattel  will  not  be  enforced 
in  equity,  unless  it  clearly  appears  that  there  is  no  adequate  remedy  at 
law.     (Roundtree  v.  McLain,  Hempst.  245.)    Cases  in  which,  and  upon 
what  grounds  a  court  of  equity  will  entertain  a  bill,  Tufts  v.  Tufts,  3 
Woodb.  &  M.  456;  Vint  v.  King,  2  Am.  Law  Reg.  712. 

20.  Land  Subject   to    Trust. — The  owner  of  the  equity  of 
redemption  of  land  took  an  assignment  of  the  mortgage  to  himself, 
"  trustee,  and  his  heirs,  and  assigns."     After  his  death  defendant  agreed 
to  buy  the  land  of  his  heirs,  upon  the  delivery  of  a  good  and  sufficient 
deed,  free  from  all  incumbrances.    Held,  that  without  a  discharge  of 
the  mortgage,  or  proof  that  the  land  was  not  subject  to  a  trust,  the  heirs 
could  not    compel    specific  performance.      Sturtevant   v.  Jaques,   14 
All.  523.     «  • 

21.  Limitations. — In    an   action  for   specific  performance,  the 
plaintiff,  after  a  decree  in  his  favor  which  does  not  designate  the  time 

31 


482  FORMS    OF     COMPLAINTS. 

for  performance,  may  demand  its  enforcement  at  any  time  until  the 
Statute  of  Limitations  becomes  available  by  his  adversary.  Redington 
v.  Chase,  34  Cal.  666. 

22.  Memorandum  must  be   in   Writing. — The  Statute  of 
Frauds  requires  the  contract  or  some  note  or  memorandum  thereof  to 
be  in  writing,  thus  recognizing  a  difference  between  the  contract  itself 
and  the  written  evidence  which  the  statute  requires.    (Chitt  on  Con/.  69; 
Joseph  v.  Holt,  Cal.  Sup.  Ct.,  Apr.  T.,  1869.)     As  to  what  is  a  suffi- 
cient memorandum  under  the  statute,  see   (Barry  v.  Coombe,   i  Pet. 
640;  Carrington  v.  Brents,  I  McLean,  167;  Bissell  v.  Farmers' and  Me- 
chanics' Bank  of  Mich.,  5  Id.  495.)     C.  agreed  in  writing  to  convey  to 
F.  an  undivided  interest  in  a  mining  claim,  upon  the  fulfillment  of  cer- 
tain specified  conditions  to  be  thereafter  performed  by  F.,  and  let  F. 
into  possession.     On  the  failure  of  C.  to  convey  as  stipulated,  F.,  being 
at  the  time  out   of    possession:  Held,  that  ejectment  would  not   lie. 
The  remedy  of  F.  was  by  action  for  specific  performance,  and  as  inci- 
dental thereto  a  delivery  of   the  possession.     (Felger  v.  Coward,  35 
Cal.  650.)    If  the  instrument  be  under  the  hand  and  seal  of  the  one  who 
is  sought  to  be  charged,  equity  will  treat  such  agreements  as  specialties. 
(Cas.  Temp.   Talb.,  108;  Burton  v.  Smith,  4  Wash.  C.  Ct.  522.)      Spe- 
cific performance  by  a  parol  contract  was  refused  for  want  of  clear, 
definite,  and  conclusive  proofs  of  the  contract,  delivery  of  peaceful  and 
uninterrupted  possession,  or  valuable  improvements  made  on  the  prem- 
ises in  question.     Purcellfl.  Miner,  4  Wall.  513. 

23.  Minor  Heirs. — Where  the  vendor  dies,  and  the  land  descends 
to  his  heirs,  some  of  whom  are  minors,  the  remedy  of  the  purchaser 
is  by  applying  to  the  court  for  an  order  of  specific  performance  by  the 
minors.     (Tompkins  v.  Hyatt,  28  N.Y.  347;  Moore  v.  Burrows,  34 
Barb.  173.)     A  purchaser  at  an  executor's  sale  of  real  estate  under  an 
order  of  court  which  has  paid  the  consideration,  may  compel  heirs  of 
deceased  to  make  a  title.     Piatt  v.  McCullough,  i  McLean,  69. 

24.  Parol    Contract,  when   Enforcible. — K.  entered  into  a 
parol  contract  to  convey  to  L.  a  tract  of  land,  upon  the  payment  of  a 
stipulated  price  therefor.     L.  paid  the  price  as  stipulated,  and  was  let 
into  possession.     Thereafter  K.  brought  ejectment  to  recover  the  pos- 
session of  said  land,  to  which  action  L.  pleaded  said  contract,  and  its 
said  part  performance,  and  prayed  judgment  for  its  complete  perform- 
ance on  the  part  of  K. :  Held,  that  a  judgment  for  L.,  as  prayed,  was 
properly  rendered.     King  v.  Meyer,  35  Cal.  646. 


FOR    SPECIFIC    PERFORMANCE.  483 

25  Parties. — Equity  may  decree  a  specific  performance,  as 
against  a  party  who  would  not  be  permitted  to  demand  it  himself. 
(Hepburn  v.  Dunlop,  i  Wheat.  179.)  A  vendor  may  have  a  decree  for 
the  specific  performance  of  a  contract  as  well  as  a  vendee.  (Cathcart 
v.  Robinson,  5  Pet.  264;  Brownson  v.  Cahill,  4  McLean,  19;  Watts  v. 
Waddle,  6  Pet.  389;  affirming  i  McLean,  200.)  A  sub-purchaser  may 
be  joined  as  a  party  at  any  time,  if  the  actual  posture  of  the  other  par- 
ties will  not  be  changed.  Taylor  v.  Longworth,  14  Pet.  172. 

26.  Performance. — For  the  purpose  of  enforcing  a  specific  per- 
formance of  stipulations,  the  consideration  for  which  was  an  agreement 
to  perform  personal  services,  an  offer  to  perform  these  services  is  not 
equivalent  to  an  actual  performance.     Cooper  v.  Pena,  21  Cat.  403. 

27.  Performance  must   be  Shown. — The  complainant  must 
show  that  he  has  performed,  or  offered  to  perform,  on  his  part,  the  acts 
which  formed   the  consideration  on  his  part.     (Kendall   v.   Almy,  2 
Sumn.    278;    Denniston  v.  Coquillard,    5   McLean,    253;    Colson  v. 
Thompson,  2  Wheat.  336;  Boone  v.  Missouri  Iron  Co.,  17  How.  U.S. 
340.)     In  Louisiana,  neither  party  can  compel  the  other  to  perform, 
unless  he  complies  with  the  contract  in  toto.     Hyde  v.  Booraem,  16 
Pet.    1 70. 

28.  Performance — Ability  of  Defendant. — The  complaint 
must  show  that  the  defendant  has  the  power  or  ability  to  perform  on 
his  part,  and  not  leave  his  capacity  in  doubt,  as  the  presumptions  are 
always  against  the  pleader,  and  all  doubts  are  to  be-  resolved  against 
him.     Where  by  the  memorandum  it  appears  that  notes  of  third  par- 
ties, dated  two  months  before,  were  to  be  given  in  payment,  but  no 
averment  of  their  existence  or  of  their  being  irr  the  possession  or  con- 
trol of  the  purchaser  at  the  time  appears  in  the  complaint,  the  defend- 
ant could  not  be  decreed  to  perform,  for  that  would  involve  an  impos-. 
sibility,  since  in  such  an  action  the  plaintiff  must  make  a  case  in  which 
the  defendant  is  prima  facie  able  to  perform.     (Joseph  v.  Holt,  Cal. 
Sup.  O.,  Apl.  T.,  1869.)     Where  a  bill  was  filed  against  the  provisional 
committee  of  a  projected  railway  company,  for  a  specific  performance 
of  an  agreement  to  deliver  a  certain  number  of  certificates,  there  being 
no  allegation  that  the  defendant  could  deliver,  but  a  statement  from 
which  the    contrary  might  be    inferred,  the  bill   shows   no  capacity 
in  the  defendants  to  perform,  and  demurrer  will  be  sustained.     Col- 
umbine v.  Chichester,  2  Phil.  27. 

I 


484  FORMS    OF     COMPLAINTS. 

29.  Prayer  for  Relief. — Under  a  bill  which  prays  for  the  rescis- 
sion of  a  contract  specifically,  and  for  general  relief,  chancery  may  de- 
cree a  specific  performance,  if  improper  to  rescind  or  modify.     (Hep- 
burn v.  Dunlop,  ,i  Wheat.  179.)     Case  where  on  refusing  to  decree  a 
specific  performance,  the  complainant  was  not  entitled  to  a  decree  for  the 
sum  to  be  paid  on  a  rescission,  Holt  v.  Rogers,  8  Pet.  420. 

30.  Refusal  to  Convey  must  be  Alleged. — In  an  action  to 
compel  defendant  to  execute  a  deed  of  real  estate  held  by  him,  the 
complaint  alleged  that  the  property  was  purchased  by  plaintiff  of  one 
C.,  and  by  agreement  with  the  defendant  was  conveyed  directly  to  him 
as  security  for  a  debt,  he  to  make  a  deed  to  plaintiff  upon  its  payment, 
and  that  the  debt  was  subsequently  paid  and  the  deed  demanded;  but 
the  complaint  failed  to  aver  that  defendant,  upon  the  demand,  refused, 
or  at  any  other  time  has  refused  to  execute  the  deed.     Held,  that  the 
failure  to  aver  refusal  is  fatal  to  the  action,  and  may  be  taken  advan- 
tage of  on  the  ground  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action.     Dodge  v.  Clark,  17  Cal.  586. 

31.  Relief. — The  specific  performance  is  a  matter  of  right,  but 
relief  rests  in  the  discretion  of  the  Court,  and  a  delay  of  five  days,  where 
time  may  be  regarded  as  of  the  essence  of  the  contract,  may  be  deemed 
a  bar  to  a  specific    performance.     (Gale   v.  Archer,  42  Barb.  320.) 
And  the  discretion  of  the  Court  is  governed  for  the  most  part  by  settled 
rules.     Bo  wen  v.  Irish  Presbyterian  Congregation,  6  Bosw.  245. 

32.  Relief,  Extent  of. — In  cases  of  specific  performance,  the 
purchaser  is  not  compellable  to  accept  a  conveyance  for  only  a  part  of 
the  premises,  except  where  th'ey  consist  of  different  parcels  purchased 
separately  and  having-  distinct  prices.     (2  Sandf.  298;  6  Johns  Ch.  38; 
Gilbert  v.  Peteter,  38  Barb.  488.)     As  to  the  form  in  relief  in  a  special 
case  where  the  deed  which  the  vendor  had  executed  became  void  by 
his  death,  and  his  administratrix  was  substituted,  and  it  was  adjudged 
that   the   original   plaintiff   was   entitled   to   a   specific   performance, 
see  Roome  v.  Phillips,  27  N.  Y.  357. 

33.  Rents  and  Profits. — Although  the  claimant   in  a  bill  for 
the  specific  execution  of  a  contract  may  not  have  specifically  claimed 
.in  his  bill  a  decree  for  rents  and  profits  while  in  the  possession  of  the 
defendant,  he  may  claim  it  in  the  appellate  court  under  the  prayer  for 
general  relief.     Watts  v.  Waddle,  6  Pet.  389;  affirming  i  McLean,  200. 


FOR    SPECIFIC    PERFORMANCE.  485 

34.  Rescinded  Contract. — Equity  will  not  compel  a  speci6c 
performance  where  the  parties  have,  upon  default  of  one  party,  agreed 
by  parol  to  rescind  the  contract.     24  N.Y.  367;  Arnoux  v.  Romans, 
25  How.  Pr.  427. 

35.  Tender. — In  suit  by  a  vendee  for  specific  performance  of  a 
contract  of  sale,  the  averment  of  tender  of  payment  was  in  general 
terms — as  that  the  tender  had  been  been  repeatedly  made,  and  that 
the  plaintiff  has  been  at  all  times,  and  still  is  ready  and  willing  to  pay. 
Held,  that  the  tender  should  have  been  stated  with  greater  particularity 
as  to  time,  but  the  objection,  in  this  respect,  cannot  be  taken  for  the 
first  time  in  the  Supreme  Court.     Duffs'.  Fisher,  15  Cal.  375. 

36.  Time  of  Performance. — A  reasonable  time  only   can  be 
allowed  to  a  vendor  to  execute  his  part  of  the  contract.     (Bronson  v. 
Cahill,  4  McLean,  19;  Mason  v.  Wallace,  Id.  77)     The  time  fixed  for 
conveyance  of  the  land  is  regarded  at  law  as  a  material  element  in  it, 
and  if  the  vendor  is  not  able  to  perform  at  the  time,  the  purchaser  may 
elect   to   consider   the   contract  at  an  end;  but  equity  will  in  certain 
cases  carry  the  agreement  into  execution,  although  the  time  appointed 
has  elapsed.     (Bank  of  Columbia  v.  Hagner,  i  Pet.  455.)     The  gen- 
eral rule  of  equity  is  that  time  is  not  of  the  essence  of  the  contract. 
Brown  v.  Covillaud,  6  Cal.  571;  Brashier  v.  Gratz,  6  Wheat.  528;  Ahl 
v.   Johnson,   20  How.    U.S.   511;    Hunter  v.  Town 'of  Marlboro,  a 

Wood.  &  M.  1 68;  3  Leading  Cases  in  Eq.  76;  Wells  v.  Wells,  Ired.  Ch. 
596;  Revemuells  v.  Jackson,  i  How.  (Miss.)  358;  Attorney-General  v. 
Purmout,  5  Paige,  620;  Hepburn  v.  Auld,  5  Cranch,  262. 

37.  Time  as  the  Essence. — Even  if  there  is  an  express  agree- 
ment that  time  shall  be  of  the  essence  of  the  contract,  yet  it  is  deemed 
strong  but  not  conclusive  evidence  by  courts  of  equity.     (2  Pars,  on 
Conf.  543.)     Except  in  cases  where  time  has  been  made  the  essence  of 
the  contract  for  the  sale  of  property,  time  is  not  treated  by  courts  of 
equity  as  of  the  essence  of  the  contract.     (Miller  v.  Steen,  30  Cal.  407; 
8  Cranch,  471;  9  Id.  456,  493,  494;  6  Wheat.  528;  7  Ves.  265;  13  Id. 
73,  225,  289;  i  Young  &  Co.  415;  Taylors.  Longworth,  14  Pet.  175; 
Hepburn  v.  Auld,  5  Cranch,  262;  Gibbs  v.  Champion,  3  Hamm.  336; 
De  Campz'.  Feay,  5  Serg. 6f  Rawle,  323;  Gillett  v.  Maynard,  ^John.  87; 
Raymond  v.  Bernard,  12  John  276,)  where  it  says  there  must  be  some- 
thing  in  the  contract  indicating  an  intention  that  default  in  payment 
should  work  a  forfeiture,  to  justify  the  supposition  that  time  is  of  the 
essence  of  the  contract,  and  it  cites  the  above  cases. 


486  FORMS    OF     COMPLAINTS. 

37.  Time  the  Essence. — Where  time  is  really  material  to  the 
parties,  the  right  to  a  specific  performance  may  depend  upon  it.     (Gar- 
net v.  Mason,  2  Brock.  Marsh.  185;  Vint  v.  King,  2  Am.   Law  Reg. 
712.)     To  make  time  the  essence  of  the  contract,  it  must  appear  that 
a  punctual  performance  is  a  condition  which  will  work  forfeiture  of 
the   rights  given,  unless   rigorously  fulfilled.     (Jones  v.  Robbins,   29 
Maine,  357.)     Something  more  than  a  mere  stipulation  that  the  money 
shall  be  paid,  or  the  deed  executed  at  a  given  time,  is  required.  Id.  87; 
Vielez>.  Troy  and  Boston  R.R.  Co.,  21  Barb.  381;  De  Camp  v.  Feay, 
5  -S.  &•  R.  328;  Jackson  v.  Ligon  3  Leigh,  161,  187. 

38.  Time,  Effect  of   Delay. — That   a   court   of  equity  may 
at  any  time,  as  a  matter  of  indulgence,  decree  a  specific  performance 
of  an  agreement,  if  the  vendor  is  able  to  make  a  good  title  before  the 
decree  is  pronounced.     (Hepburn  v.  Dunlop,  i   Wheat.  179.)     Where 
delay  has  not  changed  the  condition  of  the  parties,  nor  the  value  of  the 
property,  and  the  same  justice  can  be  done  between  the  parties  as 
when  a  conveyance  was  to  have  been  executed,  and  there  is  an  excuse 
for  delay,  a  specific  execution  may  be  decreed.     (Longworth  v.  Taylor, 
I    McLean,  395,  affirmed,  14  Pet.  172.)     So,  where  the  purchaser  has 
entered   into  possession  and  improved  the  land,  on  payment  of  the 
money  a  specific  performance  will  be  decreed,  notwithstanding  the  de- 
lay.    (Mason  v.  Wall^e,  4  McLean,  77.)     And  continued  possession 
prevents  the  purchaser  from  rescinding  the  contract  on  the  ground  of 
non-performance  on  the  day  named.     (Benson  v.  Tilton,  24  How.  Pr. 
494.)  But  possession  taken  by  the  purchaser  is  not  a  basis  for  a  specific 
performance,   if  such  possession  has  been  surrendered  by  him  before 
the  commencement  of  the  action.     (Haight  v.  Child,  34  BaM.   186.) 
"  The  general  principle  appears  to  be  perfectly  established  that  time  is 
a  circumstance  of  decisive  importance  in  these  contracts,  but  it  may  be 
waived  by  the  conduct  of  the  parties;  that  it  is   incumbent  on  the 
plaintiff  calling  for  a  specific  performance  to  show  that  he  has  used  due 
diligence,  or  if  not,  that  his  negligence  arose  from  just  cause,  has  been 
acqusesced  in."     (Chase  v.  Hogan,  3  Abb.  Pr.  (N.  S.)  66.)   The  fact  that 
neither  party  performed  nor  offered  to  perform  on  the  day  fixed  by  the 
contract,  and  that  the  purchaser  continued  in  possession  some  days 
after,  shows  that  time  was  not  considered  by  them  as  of  the  essence 
of  the  contract.     Benson  v.  Tilton,  24  How.  Pr.  494. 

39.  Time,  when   a    Bar. — When  the  circumstances  have  so 
changed  that  the  objects  of  the  party  against  whom  a  performance  is 


FOR    SPECIFIC    PERFORMANCE.  487 

sought  can  no  longer  be  equitably  accomplished -by  a  performance  where 
the  lapse  of  time  has  been  very  great,  or  where  the  value  has  materially 
changed,  etc.  etc.,  the  court  will  refuse  to  interfere.  (Green  v.  Covil- 
laud,  10  Cal.  328;  Pratt  v.  Law,  9  Cranch, .456;  Brashier  v.  Gratz,  6 
Wheat.  528;  Holt  v.  Rogers,  8  Pet.  420;  McNeil  v.  Magee,  5  Mas. 
244;  Garnett  v.  Mason,  2  Brock.  Marsh.  185;  Cooper  v.  Brown,  2 
McLean,  495.)  A  purchaser  seeking  the  aid  of  a  court  of  chancery  to 
enforce  specific  performance  must  apply  promptly.  (McWilliams  v. 
Long,  32  Barb.  194.)  When  the  vendor  gives  notice  to  the  vendee, 
by  serving  him  with  a  summons  in  ejectment,  it  is  the  vendee's  duty  to 
act  promptly,  by  tendering  payment  and  asserting  his  claim  to  the  per- 
formance of  the  contract,  or  his  equity  will  be  lost.  (Tibbs  v.  Morris, 
44  Barb.  138.)  Case  where  the  Court  refused  to  interfere  after  a  lapse 
of  seven  years,  (Pratt  v.  Carroll,  8  Cranch,  471.)  Specific  perform- 
ance was  refused  where  there  were  laches  in  the  non-performance  of  the 
agreement.  (Boone  v:  Missouri  Iron  Co.,  17  How.  U.S.  340.)  So  of 
an  award  where  there  had  been  a  long  delay  and  laches,  and  a  material 
change  of  circumstances,  and  injury  to  the  other  party.  McNeil  v. 
Magee,  5  Mas.  244. 

40.  Title. — In  a  suit  for  specific  performance,  a  purchaser  will  be 
forced  to  take  a  title  \vhich  appears  to  the  Court  of  Appeals  to  be  good, 
though  the  judge  of  the  court  below  was  of  a  different  opinion;  that 
fact  not  being  sufficient  to  constitute  a  doubtful  title.    (Beioley  v.  Carter, 
Law  Rep.  4  Ch.  230.)     An  agreement  to  make  "a  good  and  sufficient 
general  warranty  deed  "  of  lands,  is  an  agreement  to  convey  a  good  title 
to  such  lands.     Wellman  v.  Dismukes,  42  Mo.  101. 

41.  Vendor   and  Vendees   as   Trustees. — The  rule  is  well 
settled  that  where  land  is  purchased,  for  which  one  party  pays  the  con- 
sideration, and  another  party  takes  the  title,  a  resulting  trust  immediately 
arises  in  favor  of  the  person  paying  the  consideration,  and  the  other 
party  becomes  his  trustee,  and  it  is  now  equally  well  settled  that  if  one 
party  pays  only  a  part  of  the  consideration,  the  party  taking  the  title  to 
the  whole  land  becomes  a  trustee  for  the  other  party  pro  tanto.      The 
party  setting  up  the  trust  must  show  that  the  money  was  paid  by  him 
at  or  before  the  execution  of  the  conveyance.     (Hidden  v.  Jordon,  21 
Cal.  92;    Millard  v.  Hathaway,  27  Cal.  119;  Currey  v.  Allen,  34  Cal. 
254;   cited  in  Case  v.  Codding,  Cal.  Sup.  Ct.,  Jul.   T.,  1869;    2  Story 
Eq.  §  i, 201;    Will.  Eq.  600;  Botsford  v.  Burr,  2  Johns.  Ch.  405.)     The 
general  principle  is  that  from  the  time  of  the  contract  for  the  sale  of 


488  FORMS    OF     COMPLAINTS. 

the  land,  the  vendor,  as  to  the  land,  becomes  a  trustee  for  the  vendee, 
and  the  vendee,  as  to  the  purchase-money,  a  trustee  for  the  vendor, 
who  has  a  lien  upon  the  land  therefor.  And  every  subsequent  purchaser 
from  either,  with  notice,  becomes  subject  to  the  same  equities  as  the 
party  would  be  from  whom  he  purchased.  Courts  of  equity  treat  such 
contracts  precisely  as  if  they  had  been  specifically  executed.  The 
vendee  is  treated  in  equity  as  the  equitable  owner  of  the  land,  and  the 
vendor  as  the  owner  of  the  money.  (Willis  v.  Wozencraft,  22  Cal. 
6 1 6.)  The  distinction  between  action  for  specific  performance  and  an 
action  to  enforce  a  trust  considered  in  reference  to  the  effect  of  delay, 
Tomlinson  v.  Miller,  3  Keyes,  517. 

42.  What  Contract  may  be  Enforced. — A  court  of  equity 
will  decree  a  good  and  sufficient  conveyance  to  be  made  upon  payment 
of  the  purchase  money,  pursuant  to  a  contract  for  the  sale  and  convey- 
ance of  land.     (Mechanics'  Bank  of  Alexandria  v.  Seton,  i  Pet.  299; 
Murphy  v.  McVicker,  4  McLean,  252.)     But  this  jurisdiction  of  equity 
must  be  exercised  under  a  sound  discretion,  with  an  eye  to  the  substan- 
tial justice  of  the  case.     (King  v.  Hamilton,  4  Pet.  311.)     And  the  re- 
lation of  vendor  and  purchaser  must  exist  between  the  parties.     (Watson 
v.  Coulson,  i  McLean,  120.)     A  vendee  who  has  fulfilled  his  contract 
may  obtain  a  decree  for  specific  performance  against  parties  who  with 
notice  of  his  equities  succeeded  to  the  interest  of  the  vendor.     (Laverty 
v.  Moore,  33  A* Y.  658.)     The  rules  preventing  the  adjudgment  of  a 
specific  performance  of  a  contract  in  cases  of  fraud  must  state  surprise 
and  hardship — reviewed,  (Lynch  v.  Bischoff,  15  Abb.  Pr.  357.)     A  gift 
of  land,  having  been  partly  executed,  may  be  enforced  by  an  action  for 
specific  performance.     (Freeman  v.  Freeman,  51  Barb.  306.)     Lands 
held  by  no  other  tenure  than  possession,  may  be  the  legitimate  subjects 
of  control,  and  sometimes  in  equity  chattel  interests  or  personal  property 
are  made  the  subject  of  specific  performance.     Johnson  v.  Rickett,  5 
Cal.  218;  Senter  v.  Davis,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

43.  When  Action  can  be  Maintained. — Specific  perform- 
ance will  be  decreed  whenever  the  parties  or  the  subject  matter,  or  so 
much  thereof  as  is  sufficient  to  enable  the  Court  to  enforce  its  decree, 
is  within  the  jurisdiction  of  the  Court.     Thus,  specific  performance  of 
a  contract  for  lands  lying  in  America  was  decreed  in  England.     (Penn 
v.  Lord  Baltimore,  i  Ves.  444.)     So,  a  trust  in  relation  to  lands  lying 
in  Ireland  may  be  enforced  in  England,  if  the  trustee  live  in  England. 
(i  Vern.  419.)     It  will  lie  if  the  subject  of  the  trust  or  contract  be 


FOR    SPECIFIC    PERFORMANCE.  489 

within  the  jurisdiction,  though  the  parties  are  not.  So,  a  bill  for  an 
allowance  for  the  support  of  children  out  of  stocks  in  England  was 
sustained,  though  the  parties  were  out  of  the  Kingdom.  (Anonymous, 
i  Atkyns,  19.)  So,  also,  a  contract  for  the  sale  of  lands  lying  in 
America,  made  by  a  citizen  of  New  York,  at  Havana,  with  the  defend- 
ant a  Spanish  subject,  was  enforced  in  New  York,  although  there  was 
nothing  connected  with  the  parties  or  the  subject  matter  within  the  jur- 
isdiction of  the  Court,  except  the  deed  for  the  land.  (Ward  v.  Arre- 
dondo,  Hopkins  Ch.  R.  213;  see,  also,  Arglass  v.  Muschamp,  i  Vern. 
75;  Toller  v.  Cateret,  2  Id.  494;  Massic  v.  Watts,  2  Cranch,  148; 
Cleveland  v.  Burnell,  25  Barb.  523;  Newbor  v.  Bronson,  3  Kiernan, 
587;  cited  in  Rourke  v.  McLaughlin,  Cal.  Sup.  Ct.,  Jul.  T.,  1869. 


No.  526. 

v.    The  Same —  Where  Money  Lay  Idle. 
[TITLE.] 

The  plaintiff  complains,  and  alleges  : 

I.  That  the  defendant,  on  the  ....  day  of , 

1 8 . . ,  at ,  was  the  owner  in  fee'  of  the  prem- 
ises  hereafter   described,    and    that   he   then    entered 
into  an   agreement  with   the  plaintiff,  executed  under 
their  hands  and  seals,  whereby  plaintiff  agreed  to  buy 
and  defendant  agreed  to  sell    the  property  described 
therein;   of  which  agreement  the  following  is  a  copy: 

\copy  the  dgreement^ 
« 

II.  That  the  plaintiff  has  duly  performed  all  the  condi- 
tions of  said  agreement  on  his  part. 

III.  That  on  the day  of ,  18. .,  at 

,  the  plaintiff  tendered  to  defendant  said  sum 

of dollars,  and  requested  a  conveyance  of  said 

premises  according  to  the  terms  of  said  agreement;  but 


4QO  FORMS    OF     COMPLAINTS. 

the  defendant  then  and  even  since  has  refused  to  exe- 
cute and  deliver  such  conveyance. 

IV.  That  the  plaintiff,  ever  since  the  time  of  said 
tender,  has  kept  said  money  so  tendered  on  deposit 
and  unproductive,  and  ready  to  be  paid  over  on  said 
agreement,  and  into  this  Court. 

Wherefore  plaintiff  demands  judgment: 

1.  That  the  defendant  execute  to  the  plaintiff  a  suf- 
ficient conveyance  of  the  said  property. 

2.  For dollars  damages  for  withholding  the 

same. 

3.  For  interest  on  plaintiff's  purchase-money  which 
has  lain  idle  from  the  date  when  said  conveyance  should 
have  been  made. 


44.  Allegation  Where  there  is  a  Deficiency  of  Land. — 

That  since  the  making  of  said  agreement,  the  plaintiff  has  discovered 

that  there  is  a  deficiency  in  the  quantity  of  said ,  and  that 

the   same  does   not   contain    acres,   but  only   

acres.  Wherefore  the  plaintiff  demands  judgment:  (i.)  That  a  just 
deduction  from  the  purchase-money  be  made  on  account  of  said  defici- 
ency, and  that  on  payment  of  the  residue  of  said  purchase-money,  the 
defendant  execute  to  the  plaintiff  a  sufficient  conveyance  of  the  said 

property.     (2.)     For   dollars  damages  for   withholding  the 

same. 

45.  Allegation  Where  there  is  an  Outstanding  Incum- 
brance. — That  the  defendant's  title  to  the  premises  is  incumbered  by 

a  mortgage  to  one  A.  B.  for dollars,  with  interest  \terms  of 

payment},  which  mortgage  is  not  payable  until  the  ....  day  of , 

18. .,  wherefore,  etc. 

46.  Discretion. — The  Court  may  exercise  its  discretion  in  fixing 
the  time  from  which  interest  shall  run  on  the  purchase -money.     Bu- 
chanan v.  Upshaw,  i  How.  U.S.  56;  S.C.,  17  Pe/.*jo, 


FOR    SPECIFIC    PERFORMANCE.  49! 

47.  Mistake  in  Boundaries. — An  error  in  boundaries  may  be 
alleged  in  this  allegation.  Voorhies  v.  DeMayer,  2  Barb.  37;  see,  also, 
Whitw.  Eq.  Pr.  225. 


[TITLE.] 


JVo.  527. 

vi.    On  an  Exchange  of  Property. 


The  plaintiff  complains,  and  alleges  : 

I.  That  on  the    day  of ,   18 .  . ,   at 

,  the  plaintiff  and  defendant  entered  into  an 

agreement  in  writing,  dated  on  that  day,  whereby,  in 
consideration    of   the    covenants    on   the   part   of  the 
plaintiff  hereafter  mentioned,  the  defendant  covenanted 

that  he  would,  on  or  before  the  ....  day  of , 

1 8 .  . ,  convey  to  the  plaintiff  in  fee  a  lot  of  land,  situ- 
ated in  the  Town  of ,  and  County  of , 

in  the  State  of ,  and  described  as  follows:   [de- 
scription of  premises^     In  consideration  whereof,  the 
plaintiff  covenanted  in  and  by  said  agreement  to  con- 
vey to  the  defendant  in  fee  a  house  and  lot  situate  in 
the  City  of  San  Francisco,  in  this  State  [describe  if\. 

II.  That  the  plaintiff  performed  all  the  conditions  of 
said    contract   on  his  part,  and,   on    the    ....    day  of 

,  1 8 .  . ,  at ,  tendered  to  the  defendant 

a  warranty  deed  of  said  premises,  signed  and  sealed 
by  the  plaintiff,  and  demanded  of  him  a  deed  of  said 
premises  in ,  but  the  defendant  refused  to  exe- 
cute and  deliver  such  a  deed  to  the  plaintiff. 

III.  That  on  the day  of ,  18.  .,  in 

pursuance  of  said  agreement,  the  plaintiff  delivered  and 
the  defendant  took  possession  of  the  premises  so  to  be 
conveyed  to  the  defendant,  and  that  he  still  occupies 
the  same. 


492  FORMS    OF    COMPLAINTS. 

Wherefore  the  plaintiff  demands  judgment: 

That  the  defendant  convey  to  the  plaintiff  said  lot  in 

,  pursuant  to  the  contract,  and  for  the  costs  of 

this  action. 


48.  Consideration. — A  consideration  must  be  shown,  as  volun- 
tary covenants  are  not  specifically  enforced.     Hayes  v.  Kershaw,   i 
Sandf.  Ch.  258. 

49.  Exchange  of  Lands. — A  contract  for  the  exchange  of  lands 
is  as  much  within  the  Statute  of  Frauds,  as  a  contract  for  their  sale. 
Purcellz>.  Minor,  4  Wall.  U.S.  513. 

50.  Essential  Allegations. — What  must  be  shown  in  such  a 
complaint,  and  which  require  to  be  proved,  are:  First,  The  contract 
must  be  shown,  bearing  no  jus  deliberandi  nor  locus  peniteniice.     Second, 
That  the  consideration  has  been  tendered.     Third,  That  there  has  been 
such  a  part  performance  that  its  rescission  would  be  a  fraud  on  the 
other  party,  and  could  not  be  fully  compensated  by  recovery  of  dam- 
ages in  a  court  of  law.     Fourth,  That  delivery  of  possession  has  been 
made  in  pursuance  of  the  contract,  and  acquiesced  in  by  the  other 
party.     A  gift  of  land,  having  been  partly  executed,  may  be  enforced 
by   an   action  for  specific   performance.     Freeman   v.   Freeman,    51 
Barb.  306. 

No.  528. 

vii.    Vendor  against  Purchaser. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....   day  of ,   18 .  . ,  the 

plaintiff  was  seized  in  fee  of  certain  property  hereafter 
described. 

II.  That  on  the  same  day  the  plaintiff  and  defendant 
entered  into  an  agreement  under  their  hands  and  seals, 
whereby  plaintiff  agreed  to  buy,  and  defendant  agreed 


FOR    SPECIFIC    PERFORMANCE.  493 

to  sell  the  land  described  in  said  agreement;  a  copy  of 
which  is  hereto  annexed,  and  made  a  part  of  this  com- 
plaint, marked  "  Exhibit  A." 

III.  That   on  '  the  ....  day  of ,   18 .  . ,  at 

,  the  plaintiff  tendered  to  the  defendant  a  deed 

of  the  premises,  pursuant  to  the  agreement,  but  the  de- 
fendant then,  and  ever  since,  refused  to  accept  the  same, 
and  to  pay  the  amount  of  purchase-money  specified  in 
the  said  agreement  [or  otherwise,  according  to  the  terms 
of  sale\. 

IV.  That  the  plaintiff  was,  and  has  always  been,  and 
still  is  ready  and  willing  to  perform  the  agreement  on 
his  part. 

Wherefore  the  plaintiff  demands  judgment: 

i.    That  the  defendant  perform  said  agreement,  and 

pay  to  the  plaintiff dollars,  the  remainder  of 

said  purchase-money,  with  interest  from  the  .  .  .  ,  day 
of ,  18... 

[Annex  "Exhibit  A."] 


51.  Agreement. — That  the  plaintiff  executed  the  agreement  is 
not  essential.     Clason  v.  Bailey,  14  Johns.  484;   Worrall  v.  Munn,   5 
N.F.  229. 

52.  Contracts,  when  Enforced. — While  it  is  a  general  rule 
that  contracts  for  the  sale  and  transfer  of  personal  property  will  not  be 
specifically  enforced,  yet,  if  there  are  circumstances  in  view  of  which  a 
judgment  for  damages  would  fall  short  of  the  redress  which  the  plaintiff's 
situation  demands,  as  that  by  non-performance  he  will  be  greatly  em- 
barrassed and  impeded  in  his  business  plans,  or  involved  in  a  loss  of 
profits  which  a  jury  cannot  estimate  with  any  degree  of  certainty,  equity 
will  decree  specific  performance.     Duff  v.  Fisher,  15  Cal.  375;  Treas- 
urer v.  The  Commercial  Coal  Co.,  23  Id.  390;  McLaughlin  v.  Piatti, 
27  Id.  463;  Senter  ».  Davis,  Cal  Sup.  Ci.,  Oct.  T.,  1869. 


494  FORMS    OF    COMPLAINTS. 

53.  Damages. — The  existence  of  an  adequate  remedy  by  action 
for  damages  does  not  preclude  the  vendor  of  lands  from  suing  for 
specific  performance.     Fry  on  Sp.P.  n;  2  Const.  60;    Schroeppel  v. 
Hopper,  40  Barb.  425. 

54.  Debt,  Purchase  of. — A  bill  in  equity,  which  states  as  the 
complainant's  title,  that  he  purchased  under  regular  proceedings,  and 
at  an  open  and  fair  executed  sale,  a  debt  of  $260,000  for  $600,  is  not 
bad  on  demurrer.     Erwin  v.  Parham,  12  How.  U.S.  197. 

55.  Employment. — Where  the  defendant  employed  the  plaintiff 
to  negotiate  a  sale  of  certain  described  lands,  and  find  a  purchaser  for  the 
same,  with  a  stipulation  that  if  the  said  plaintiff  should  within  ten  days 
find  a  purchaser  at  a  certain  price  per  acre,  that  the  defendant  would 
sell  and  convey  the  same  to  such  purchaser,  and  that  plaintiff  should 
have  for  his  services  all  that  should  be  obtained  from  such  over  said 
price  per  acre,  it  is  not  a  contract  for  sale  of  land  within  the  meaning 
of  the  Statute  of  Frauds,  but  is  a  mere  contract  of  employment.     (Heyn 
v.  Phillips,  Cal.  Sup.  Ct.,  Jul.  T.,  1869.)    And  is  revocable  at  anytime. 
(Brown  v.  Pforr,  Id.)     But  it  would  seem  that  where  a  portion  of  the 
remuneration  to  be  paid  for  such  services,  should  be  a  part  of  the  land 
in  question,  it  would  be  otherwise.     In  that  case,  the  contract  being  oral, 
and  no  note  or  memorandum  having  been  reduced  to  writing  or  signed 
by  either  party  thereto,  that  portion  stipulating  for  the'  transfer  of  land 
to  the  plaintiff  is  null  and  void  by  the  eighth  section  of  the  Statute  con- 
cerning Fraudulent  Conveyances,  and  that  portion  of  the  contract  being 
void,  the  remaining  portion  could  not  be  enforced.      Lexington  v. 
Clark,   2    Ventr.  223;    Chater  v.  Brickett,  7  Tenn.   201;    Crawford   v. 
Merrill,  8  John.  255;    Van  Alstine  v.  Wimple,  5  Con.  164;    cited    in 
Fuller  v.  Reed,  Cal.  Sup.  Ct.,  Jul.  T.,  1869. 

56.  Oral  Contract. — Specific  performance  of  an  oral  contract 
partly  performed,  may  be  enforced.     (Bennett  v.  Abrams,  41   Barb. 
619;  Williston  v.  Williston,  Id.  635.)     Where  the  purchaser  takes  pos- 
session by  virtue  of  the  agreement,  with  the  assent  of  the  vendor,  a 
specific  performance  may  be  enforced.      Will.  Eq.   283;  Williston  v. 
Williston,  41  Barb.  635. 

57. '  Part  Performance. — A  court  will,  under  some  circumstances, 
decree  a  specific  performance,  where  there  has  been  a  part  perform- 
ance. (Brashier  v.  Gratz,  6  Wheat.  528.)  The  payment  of  part  of 
the  price,  is  not  such  an  act  as  that  the  icscission  of  the  contract  would 


FOR    SPECIFIC    PERFORMANCE.  495 

be  a  fraud  on  the  other  party.  Story's  Eg.  §§  760,  761 ;  Sudg.  on  Vend. 
112  §  3  Exp.  Storer,  Da-vies,  294;  Haight  v.  Child,  34  Barb.  186; 
Purcell  v.  Miner,  4  Wall.  [7.S.  513. 

58.  Plaintiff's  Title. — If  the  plaintiff's  title  is  defective,  and  it 
appears  before  decree  or  report,  that  it  can  be  perfected,  the  delay  is 
compensated  by   charging  the   complainant   with  interest.     Clute  v. 
Robinson,  2  Johns.  595;  Pierce  v.  Nichols,  i  Paige,  244;  Brown  v. 
Haff,  5  Id.  235;  Reformed  Dutch  Church  v.  Mott,  7  Id.  77;  Viele  v. 
Troy  and  Boston  R.R.   Co.,  21   Barb.   381;  affirmed,  20  N.Y.  184; 
Cleaveland  v.  Burrill,  25  Barb.  532. 

59.  Remedy. — Whether  equity  will  enforce  the  specific  perform- 
ance of  a  contract,  depends  not  upon  the  character  of  the  property 
involved,  as  whether  it  be  real  or  personal,  but  upon  the  inadequate 
remedy  afforded  by  a  recovery  of  damages  in  an  action  of  law.     Duff 
v.  Fisher,  15  Cal.  375. 

60.  Sale  and  Delivery  of  Chattel. — W.  agreed  orally  to  buy 
of  G.  a  designated  mschine,  worth  $375,  and  directed  G.  to  forward  the 
same,  by  the  New  York  Central  Railroad,  to  one  S.     Held,  that  the  sale 
was  complete,  and  taken  out  of  the  Statute  of  Frauds,  by  delivery  to  said 
railroad   company.     Specific    performance   decreed   in   favor   of  the 
vendors,  Glen  v.  Whitaker,  51  Barb.  451. 

61.  Tender. — No  previous  tender  of  a  deed  is  necessary  where  the 
purchaser  has  abandoned  possession  and  given  notice  of  his  refusal  to 
perform.     Crary  v.  Smith,  2  N.Y.  60. 

62.  Variance. — If  there  be  a  variance  between  the  written  agree- 
ment and  the  true  agreement,  the  difference  should  be  clearly  shown. 
Coles  v.  Browne,  10  Paige,  526. 


CHAPTER   VII. 

USURPATION    OF    OFFICE. 

No.  529. 

i.    By  the  Attorney-General  against  an  Elective   Officer. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allegation  of  capacity  as  in  Form  No.  4,  Vol.  /., 
/•  I74-] 

II.  That   on   the  ....  day   of ,  18 .  .,    at 

,  an  election  was  duly  held  in  the 

[  Precinct,   District,   or  County]   of  this  State,  for  the 
office  of   \here  designate  the  office^    for  the   term  of 
years,  from  the  ....  day  of ,  1 8 .  . . 

III.  That  at  the  said  election  one received 

the  greatest  number  of  legal  votes  for  the   said  office. 

IV.  That  on  the  ....  day  of ,  1 8 . . ,  the 

defendant  usurped  the  said  office,  and  has  ever  since 
withheld  the  same  from  the  said 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  the  defendant  is  not  entitled  to  the  said 
office,  and  that  he  be  ousted  therefrom. 

2.  That  the  said is  entitled  to,  and  that  he 

be  put  in  possession  of  the  same. 


FOR    USURPATION   OF    OFFICE.  497 

,  1.  Action  in  General. — Actions  for  the  usurpation  of  any  office, 
franchise  or  liberty,  or  on  the  part  of  a  corporation  for  the  usurpation 
of  a  franchise  not  authorized  by  law,  are  brought  by  the  Attorney-Gene- 
ral. (5  Mass.  230.)  He  may  set  forth  in  the  complaint  the  name  of 
.the  person  rightfully  entitled  to  the  office,  with  a  statement  of  his  right 
thereto.  (Cal.  Pr.  Act,  §  311;  Ex  parte  Att'y-Genl.,  i  Cal  87.)  It 
is  a  remedy  provided  by  the  Code;  (People  v.  Olds,  3  CaL  175;) 
though  the  distinction  between  writs  of  mandate  and  quo  warranto  are 
still  recognized.  {Id.  177.)  It  is  the  proper  remedy  to  try  the  right 
to  an  office.  (People  v.  Scannell,  7  Cal.  439.)  The  contestant  in 
such  actions  cannot  take  judgment  by  default;  the  allegations  must 
be  proved.  Keller  v.  Chapman,  34  Cal.  635;  Searcy  v.  Grow,  15 
Cal.  117;  Dorsey  v.  Barry,  24  Cal.  449. 

2.  Appointment  to  Office. — Under  the  provisions  of  the  Con- 
stitution, two  events  must  coincide  before  the  Governor  is  authorized 
to  appoint  to  an  office.  There  must  be  both  a  vacancy,  and  no  mode 
provided  by  the  Constitution  and  laws  for  filling  "  such  vacancy." 
(People  v.  Mizner,  7  Cal.  523;  People  v.  Stratton,  28  Cal.  392;  The 
People  ex  rel.  Shoaff  v.  Parker,  Cal.  Sup.  Ct.,  Jul.  T.,  1869;)  in  this 
case  assuming  that  there  was  a  vacancy,  notwithstanding  the  fact  that 
there  was  a  locum  tenens  authorized  to  hold  until  some  one  else  should 
be  duly  appointed.  See  (People  v.  Whitram,  10  Cal.  43,  contra?) 
Was  there  no  mode  provided  by  law  to  fill  such  vacancy  ?  The  constitu- 
tional provision  only  steps  in  where  no  other  appointing  power  is 
provided;  and  it  has  been  repeatedly  held  that  the  constitu- 
tional provision  conferring  power  on  the  Governor  in  the  cases  speci- 
fied, should  be  strictly  construed  when  there  is  any  doubt,  so  as  to 
limit  the  power  of  the  Governor.  (People  v.  Mizner,  8  Cal.  524; 
People  v.  Langdon,  8  Cal.  15;  People  v.  Whitman,  10  Cal.  46;  The 
People  ex  rel  Shoaff  v.  Parker,  Cal.  Sup.  Ct.,  Jul.  T.,  1869.)  The 
power  creating  an  office  may  immediately  select  the  officer  for  the 
whole  or  a  limited  period  of  its  existence,  and  may  and  most  generally 
does  merely  create  the  office,  define  its  duties,  and  prescribe  the  mode 
of  selecting  the  officer  for  the  successive  terms  or  periods  of  its  existence, 
and  may  and  usually  does  provide  a  mode  for  supplying  an  officer,  in 
case  the  primary  mode  provided  should  partially  or  wholly  fail  to 
accomplish  that  result  for  the  entire  term.  (The  People  ex  rel.  Shoaff 
v.  Parker,  Cal.  Sup.  Ct.,  Jul.  T.,  1869.)  A  vacancy  in  an  office  or 
term  of  office  contemplated  by  the  statute,  has  reference  to  and  is 
immediately  connected  with  an  incumbent  who  has  entered  upon 

32 


498  FORMS   OF    COMPLAINTS. 

the   office,  or  a  duly  selected  incumbent  of   such  office  or  term   of 
office. 

3.  Arkansas. — The  writ  of  quo  warranto  lies  against  a  corpora- 
tion for  the  abuse  of  its  charter.     Smith  v.  State,  21  Ark.  294. 

4.  Averment  of  Date  of  Incorporation. — A  complaint  in 
quo  warranto  against  a  plank  road  company  must  aver  time  of  incorpo- 
ration or  date  of  organization,  that  the  Court  may  know  by  what  statute 
the  decision   is  to  be  governed.      Covington  Co.  v.  Van  Sickle,   18 
Ind.  244. 

r 

5.  Damages. — Damages  sustained  by  reason  of  the  usurpation 
may  be  recovered.     Cal.  Pr.  Act,  §  314. 

6.  Determination  of  Rights. — In  such  actions  the  Court  may 
not  only  determine  the  right  of  the  defendant,  but  of  the  relator  also; 
and  if  it  determine  in  favor  of  the  relator,  may  rentier  judgment  that 
the  defendant  forthwith  deliver  up  to  the  relator  the  office.     People  v. 
Banvard,  27  Cal.  470. 

*7.  District  Attorney. — A  person  not  licensed  to  practice  law 
by  any  court  is  eligible  to  the  office  of  District  Attorney,  in  California. 
People  v.  Dorsey,  32  Cal.  296. 

8.  Duly  and  Legally  Held. — "  That  an  election  was  duly  and 
legally  held  pursuant  to  the  Statute,"  was  held  sufficient  as  to  the  time, 
and  that  it  was  on  the  day  prescribed  by  law.      People  v.  Ryder,  2 
Kern.  433. 

9.  Essential  Averments. — The  complaint  should   state  the 
facts  constituting  the  usurpation,  which  constitute  the  cause  of  action. 
States.  Messmore,  14  Wis.  115. 

10.  Holding  Office. — To  constitute  the  "  holding  "  of  an  office, 
there  must  be  the  concurrence  of  two  wills — that  of  the  appointing 
power,  and  that  of  the  person  appointed.     People  ex  rel.  Meloney  v. 
Whitman,  10  Cal.  38. 

11.  Holding  Two  Offices. — For  discussion  on  the  meaning  of  the 
third  article  of  the  Constitution,  and  a  review  of  the  discussions  upon 
the  point  involved  from  the  earliest  case  of  Burgoyne  v.  Supervisors,  5 
Cal.  191;  seethe  leading  case  of  People  v.  Provines,  34  Cal.  521. 


FOR   USURPATION    OF    OFFICE.  499 

12.  Illinois. — In  Illinois,  a  proceeding  by  quo  warranto  is  a  crim- 
inal prosecution,  and  should  be  carried  on  "in  the  name  and  by  the 
authority  of  the  people  of  the  State  of  Illinois,"  and  should  conclude 
"against  the  peace  and  dignity  of  the  same."    (n  ///.  552;  13  ///.  66; 
15  Id.  417;  see  PuterbaugKs  PL  &  Pr.  669.)   When  it  is  resorted  to 
for  the  protection  of  individual  rights,  it  is  in  substance,  though  not  in 
form,  a  civil  suit,  and  a  change  of  venue  under  the  statute,  the  same  as 
in  civil  cases.     (13  ///.  581.)      And  it  should  be  alleged  that  the  party 
against  whom  it  is  filed  holds  and  executes  some  office  or  franchise, 
describing  it.    (21  ///.  65.)     It  is  the  proper  mode  of  testing  the  ques- 
tion of  forfeiture  of  a  charter,    i  Gilm.  667;  32  ///.  82. 

13.  Intruder. — A  person  holding  a  certificate  of  election  without 
legal  title  to  the  office  is  an  intruder.      (People  v.  Jones,  20  Cal.  50.) 
And  the  action  lies  against  an  intruder  into  the  office  created  by  the 
charter  of  a  corporation.     People  v.  Kipp,  4  Cow.  382;  People  v.  Tib- 
bits,  Id.  358. 

14.  Louisiana. — In  Louisiana,  the  writ  of  quo  warranto  will  not 
be  granted  to  test  the  right  to  a  state  office.      Terry  v.  Stauffer,  17  La. 
An.  306. 

15.  Massachusetts. — The  proceeding  in  quo  warranto  is  applied 
to  testing  the  right  to  the  use  of  lands  below  low  water  mark.      (Com- 
monwealth v.  Roxbury,  9  Gray  (Mass.)  451.)      In  Massachusetts,  the 
action  lies  for  the  purpose  of  dissolving  a  corporation,  or  seizing  its 
franchises;    (Commonwealth  v.   Union  Insurance  Co.,  5  Mass.  230;) 
in  cases  of  usurpation  by  individuals  of  offices  holden  of  the  Common- 
wealth;  (Commonwealth  v.  Fowler,  10  Mass.  295;)  against  an  officer 
appointed  by  the  Governor  and  council,  viz.,  a  judge  of  probate,  as  well 
as  those  holding  corporate  offices  or  franchises.      (Commonwealth  v. 
Fowler,  10  Mass.  290.)     So  of  the  right  of  persons  exercising  the 
functions  of  parish  officers  in  colon'  officii.      (Sudbury  v.  Stearns,  21 
Pick.  155.)     Against  a  corporation,  for  a  forfeiture  of  their  charter. 
(Commonwealth  v.  Tenth  Mass.  Turnpike  Co.,  5  Cush.  509.)  Or  a 
violation  of  their  charter,     (n  Cash.  171.)     It  does  not  lie  against  the 
managers  of  a  corporation  having  the  grant  of  a  lottery.     (Common- 
wealth v.  Dearborn,  15  Mass.  125.)     Nor  against  a  railroad  company, 
in  behalf  of  a  stockholder,  merely  because  the  corporation  issued  stock 
below  the  par  value,  and  began  to  construct  their  road  before  the  requi- 
site amount  of  stock  was  subscribed,  if  the  petitioner's  private  interest 


5<X>  FORMS   OF    COMPLAINTS. 

was  not  put  in  hazard.  (Hastings  v .  Amherst  and  Belchertown  R.R., 
9  Cush.  596.)  The  information  must  be  filed,  by  the  Attorney-General. 
(Goddard  v.  Smithett,  3  Gray,  116;  Commonwealth  v.  Union  Fire  and 
Marine  Ins.  Co.,  5  Mass.  230;)  or  the  Solicitor-General.  Id. 

16.  Michigan. — Where  the  information  averred  that  an  election 
to  fill  the  offices  was  held,  and  the  relator  duly  elected,  a  plea  was  held 
to  be  good  which  set  forth  that  no  votes  were  cast  to  fill  such  office. 
As  to   its  exercise   in   the  dissolution  of  insolvent  corporations,  see 
(People  v.  Bank  of  Pontiac,  12  Mich.  527.)    The  Court  will  not  dismiss 
an  information  in  the  nature  of  a  quo  warranto  on  motion  of  the  relator 
whose  name  was  used  without  his  authority,  but  will  amend  the  inform- 
ation by  striking  out  the  relator's  name.      (People  v.  Knight,  13  Mich. 
230.)     Judgment  of  ouster  will  be  given  on  default.     People  v .  Con- 
nor, 13  Id.  238. 

17.  Missouri. — A  writ  of  quo  warranto  is  in  the  nature  of  a  writ  of 
right  for  the  State,  against  any  person  who  claims  or  exercises  any  office, 
to  inquire  by  what  authority  he  supports  his  claim,  and  it  issues  as  a  mat- 
ter of  course.     (State  v.  Perpet.  Ins.  Co.,  8  Mo.  330;  State  v.  Stone,  25 
Mo.  555.)     Leave  of  court  must  first  be  obtained  before  the  informa- 
tion can  be  filed,  as  the  relation  of  a  private  person,  but  otherwise  when 
the  Attorney-General  files  the  information  ex  officio.     The  jurisdiction  of 
the  Supreme  Court  being  appellate,  it  refused  to  issue  the  writ.      (State 
v.  Stewart,  32  Mo.  379.) '  It  is  a  civil  proceeding.      (State  v.  Luigo,  26 
Mo.  496.)    The  sheriff  of  the  old  county  may  proceed  against  the  per- 
son assuming  to  act  as  sheriff  of  the  new  county,  when  the  act  establish- 
ing the  new  county  within  the  borders  of  the  old  county  is  unconstitu- 
tional.    State  v.  Scott,  17  Mo.  521.)     Where  an  office  is  already  filled 
by  a  person  holding  by  color  of  right,  quo  warranto  is  the  proper 
remedy.      (St,  Louis  Co.  Court  ^..Sparks,  10  Mo.  117.)    A  recorder 
who  has  failed  to  take  and  file  the  oath  prescribed  by  the  new  Constitu- 
tion may  be  removed  upon  an  information  in  the  nature  of  a  quo  war- 
ranto.    (State  v.  Bermondy,  36  Mo.  279.)     In  suit  against  a  defaulter, 
the  petition  should  show  that  the  person,  when  appointed  to  the  second 
office,  was  in  default,  and  accountable  for  public  moneys.     Ex  parte 
Bellows,  i  Mo.  115. 

JB.     New  York. — In  New  York,  an  action  in  the  nature  of  a  quo 

-warranto  is  a  civil  action.    (People  v.  Cook,  8  N.F.  67;  affirming  S.C., 

14  Barb.  259.)     It  may  be  maintained  to  establish  title  to  a  public 


FOR    USURPATION    OF    OFFICE.  5oi 

office.  (People  ex  rel.  Smith  v.  Pease,  27  N.Y.  45.)  In  such  action  it 
may  be  shown  that  a  sufficient  number  of  the  votes  cast  for  a  person  who 
received  the  certificate  were  illegal,  to  annul  his  majority,  and  his  elec- 
tion may  be  set  aside  for  that  reason.  (Id. )  Such  action  lies  against  a 
corporation,  of  which  a  receiver  was  appointed  on  account  of  its  insol- 
vency, to  vacate  its  charter  and  prohibit  it  from  acting.  (People  ex 
rel.  Barton  v.  Rensselaer  Ins.  Co.  38  Barb.  323;  People  v.  Washington 
Ice  Co.,  1 8  Abb.  Pr.  382.)  It  lies  against  a  corporation  for  carrying  on 
banking  business  without  authority,  this  being  a  franchise  given  by 
statute.  (People  v.  Utica  Ins.  Co.,  15  Johns.  358.)  So  is  the  posses- 
sion of  corporate  powers.  (People  v.  Tibbets,  4  Cow.  384.)  So  is  the 
appointment  of  professers  of  an  incorporated  college.  (People  v. 
Trustees  of  Geneva  College,  5  Wend.  211.)  The  object  of  the  Code 
is  to  provide  a  speedy  and  effective  mode  of  determining  the  claims  of 
persons  to  exercise  the  duties  of  any  office  within  the  State,  and  in  nec- 
essarily involves  a  determination  of  the  existence  of  the  particular  office. 
People  v.  Carpenter,  24  N,Y.  86.  « 

19.  North  Carolina. — An  information  in  the  nature  of  a  writ  of 
quo  warranto  against  a  corporation,  to  have  its  privileges  declared  for- 
feited because  of  neglect  and  abuse  in  their  exercises,  must  be  brought 
in  the  name  of  the  Attorney-General  and  cannot  be.instituted  in  the  name 
of  a  solicitor  of  a  judicial  district.     Houston  v.  Neuse  River  Co.,  8 
Jones,  476. 

20.  Ohio. — On  a  judgment  of  ouster  in  quo  warranto,  against  an 
incumbent  in  office,  the  Court  will  not  proceed  to  adjudge  in  favor  of 
another  claimant  whose  election  is  then  in  process  of  regular  contest. 
State  z>.  Taylor,  15  Ohio  St.  137. 

21.  Parties. — A  certificate  of  election  is  not  necessary  to  enable  a 
party  claiming  to  have  been  elected  to  bring  this  suit.   (Magee  v.  Board 
or  Supervisors  of  Calaveras  Co.,  10  Cal.  376.)     Where  several  claim  an 
office,  their  rights  may  be  determined  in  a  single  action.     Cal.  Pr. 
^/,  §315- 

22.  Pennsylvania. — Jurisdiction  in  quo  warranto  is  exercised  by 
the  Supreme  Court,  and  the  State  has  power  to  inquire  into  the  exer- 
cise of  the  right  of  corporations  reserving  the  right  of  trial  by  jury  in 
such  cases.    (Commonwealth  v.  Delaware  Co.,  Penn.  St.  R.  (7  Wright) 
295.)     The  Supreme  Court  will  grant  the  writ  to  try  the  right  of  a  mem- 


5O2  FORMS    OF    COMPLAINTS. 

ber  of  the  Common  Council  to  a  seat  in  that  body.     Commonwealth  v. 
Meeser,  44  Penn.  St.  R.  (8  Wright)  341. 

23.  Possession. — Allegations  of  possession  without  legal  author- 
ity import  intrusion  and  usurpation.      (People  v.  Woodbury,  14  Cal. 
43.)     An  allegation  that  defendant  is  in  possession  of  the  office  without 
lawful  authority,  is  a  sufficient  allegation  of  intrusion  and  usurpation. 
If  the  complaint  be  defective  in  this  particular,  the  defect  must  be 
reached  by  special  demurrer.     Id. 

24.  Salary  of  Office. — The  salary  annexed  to  a  public  office  is 
incident  to  the  title  of  the  office,  and  not  to  its  occupation  and  exercise. 
Principle  affirmed  in  (Dorsey  v.  Smith,  28  Cal.  21;  Stratton  v.  Oulton, 
Id.  44.)     And  a  party  elected  and  qualified,  and  being  ready  and  will- 
ing to  enter  upon  the  discharge  of  the  duties  of  the  office,  his  right  to 
the  salary  is  unaffected  by  the  fact  that  a  usurper  discharged  the  duties 
of  the  office.     Dorsey  v.  Smith,  28  Cal.  21;  cited  in  Carroll  v.  Seiben- 
thaler,  Cal.  Sup.  C/.,  Apl.  T.jn86g. 

25.  Surrender  of  Office  Property. — In  an  action  by  one  claim- 
ing to  have  been  elected  to  an  office,  against  his  predecessor,  to  compel 
a  surrender  of  the  books  and  papers  belonging  to  the  office,  plaintiff 
must  show  prima  facie  that  a  vacancy  existed  in  the  office,  and  that  he 
was  elected  to  fill  it.     Doane  v.  Scahnell,  7  Cal.  393;  Id.  439. 

26.  Title  of  Relator. — In  pleading  a  party's  title  to  public  office, 
an  averment  that  under  and  in  pursuance  of  the  laws  of  this  State,  on  a 
specified  day,  he  was  duly  appointed  to  fill  such  office,  and  duly  made 
and  executed  his  official  bond  with  sureties,  and  took  the  oath  of  office 
required   by  law,  and  was  thereby  constituted  such  officer,  and   was 
thenceforth  entitled  to  hold  and  administer  such  office,  is  sufficient  on 
demurrer.     (Platt  v.  Stout,  14  Abb.  Pr.  178.)     But  the  complaint  need 
not  aver   his  requisite   qualifications  for  the  office.     People   ex  rel. 
Crane  v.  Ryder,  12  N.Y.  433. 

27.  United  States  Territories. — A  proceeding  in  the  nature  of 
a  quo  warranto  in  one  of  the  Territories  of  the  United  States,  to  test  the 
right  of  a  person  to  exercise  the  functions  of  a  judge  of  the  Supreme 
Court  of  the  Territory,  must  in  the  name  of  the  United  States,  and  not 
in  the  name  of  the  Territory.     (Territory  v.  Lockwood,  3  Watt.  236.) 
The  proper  practice  in  such  cases,  in  quo  warranto,  stated,  United 
States  v.  Lockwood,  Burn.  (  Wts.)  215. 


FOR   USURPATION    OF    OFFICE.  503 

28.  Unnecessary  Averments. — It  need  not  be  stated  that  the 
claimant  possessed  the  requisite  qualifications,  nor  that  he  has  taken  the 
oath  and  given  bond  of  office,  nor  need  it  state  the  number  of  votes 
given.     (People  ex  rel.  Crane  v.  Ryder,  12  N. F.,  433;  S.C.,  16  Barb. 
370. )     As  the  complaint  may  be  good  against  the  defendants  without 
showing  title  in  the  relator.     Flynn  v.  Abbott,  16  Cal.  358;  People  v. 
Ryder,  16  Barb.  370. 

» 

29.  Vacancy. — Vacancy  in  office  is  defined  in  the  Constitution. 
(People  v.  Whitman,  10  Cal.  38.)     When  the  Constitution  enumerates 
the  events  that  constitute  a  vacancy,  all  other  causes  of  vacancy  are 
excluded,  except  when  the  Constitution  leads  to  an  anonymous  result. 
(Brooks  v.  Maloney,  15  Cal.  58.)     As  to  when  a  vacancy  occurs  in  an 
office,  see  (People  ex  rel.  Shoaf  v.  Parker,  Cal.  Sup.  Ct.,  Jul.  T.,  1869; 
citing  and  commenting  on  various  cases,  and,  also,  People  ex  rel.  Baird 
v.  Tilton,  Cal.  Sup.  Ct.,  Jul.  T.,  1869;    likewise    eking   many   cases, 
and  commenting  thereon.)    In  the  States  of  Pennsylvania  and  Missouri, 
it  has  been  held  that  a  vacancy  does  not  occur,  but  the  incumbent  of  the 
expired  term  holds  over.     Commonwealth  v.  Hanley,  9  Penn.  S.  R. 
513;  State  v.  Lush,  18  Mo.  333. 

30.  When  Action  Lies. — For  usurpation  of,  intrusion  into,  or 
unlawful  holding  any  public  office,  civil  or  military,  this  action  will  lie. 
(People  v.  Olds,  3  Cal.   167;  Lewis  v.  Oliver,  4  Abb.  Pr.  121;  People 
v.  Sampson,  25  Barb.  254.)     Or  to  try  the  title  to  office.     (People  v. 
Scannell,  7  Cal.  432;  Mayor  of  N.Y.  v.  Conover,  5  Abb.  Pr.  171.)     Or 
to  test  the  right  of  an  appointee  of  the  Board  of  Pilot  Commissioners. 
(Palmer  v.  Woodbury,  14  Cal.  43.)     Or  against  one  in  possession  of  an 
office  to  which  he  has  not  been  duly  elected,  but  who  holds  a  certificate 
from  the  board  of  election  canvassers.     (People  v.  Jones,  20  Cal.  50.) 
The  possession  of  the  certificate-  affords  him,  at  most,  but  a  color  of 
title,  and  does  not  invest  him  with  the  right  which  belongs  to  another. 
(/</.)     It  is  only  prima  facie  evidence  of  title  to  the  office,  and  not  con- 
clusive.    (Magee  v.  B'd  of  Supervisors,  10  Cal.  376.)     It  is  competent 
to  go  behind  the  certificate  in  such  proceedings,  as  the  issuance  of  a 
commission  is  a  mere  ministerial  act.     Conger  v.  Gilmer,  32  Cal.  75; 
People  v.  Seaman,  5  Den.  409. 

31.  Who  may  Grant  Writ. — Judges  of  the  District  Court  may 
issue  the  writ.     Saunders  v.  Haynes,  13  Cal.  145. 

32.  Wisconsin. — In  Wisconsin,  the  writ  and  the  substituted  pro- 


•• 

504  FORMS    OF    COMPLAINTS. 

ceeding  by  information  in  the  nature  of  quo  warranto  are  abrogated  by 
statute  and  a  civil  action  lies  in  their  place.  State  v.  Messmore,  14 
Wu.  115. 

JVo.  530. 

ii.     The  Same — Agdinst  an  Appointed  Officer,  for  Holding  Over. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  ....  day  of ....!..,  18 ..,  at , 

the  defendant  was  duly  appointed .,  by  the  Super- 
visors of  said  City,  and  immediately  thereafter  entered 
upon  the  duties  of  the  said  office,  and  continued  therein 
until  his  removal  as  herein  stated. 

II.  That  on  the  ....  day  of ,  18 .  .,   the 

defendant  was  duly  removed  from  the  said  office  by 
the  Supervisors  of  said  City. 

III.  That  immediately  after  the  removal  of  the  de- 
fendant as  aforesaid,   one  A.  B.   was   duly   appointed 

,  by  the  Supervisors  of  the  City,  to  fill  the 

vacancy  made  by  the  removal  of  the  said  defendant  as 
aforesaid. 

IV.  That  the  said  A.  B.  thereupon  accepted  the  said 
office,  and  in  the  form  and  within  the  time  required  by 
law  and  the  ordinances  of  the  said  City,  took  and  sub- 
scribed before  the  Mayor  of  the  said  City,  and  filed  in 
his   office,    the  oath  of  office    of   the  said  A.  B.,    as 

such   ,  and   also   executed   and   filed   in   the 

office  of  the    of  the  said   City,    an   official 

bond,  with  sufficient  sureties,  -approved   by   the   said 
,   in   the    amount    prescribed,  by    the    ordi- 
nances of  the  said  City. 


FOR    USURPATION    OF    OFFICE.  .  505 

V.  That  the  said  A.  B.,  after  the  filing, of  such  offi- 
cial oath  and  bond,  demanded  of  the  said  defendant  the 
possession  of  the  said  office,  which  the  said  defendant 
refused;  and  he  still  continues  to  usurp,  hold,  and  exer- 
cise the  said  office,  to  the  exclusion  of  the  said  A.  B. 

Wherefore  the  plaintiff  demands  judgment: 

1.  That  the   defendant  is   not  entitled  to  the  said 
office,  and  that  he  be  ousted  and  excluded  therefrom. 

2.  That  the  plaintiff  is  entitled  to  the  said  office, 
and  that  he  be  admitted  into  the  same,   and  to  all  the 
rights  and  emoluments  thereof. 

33.  Arrest. — That  defendant  may  in  such  actions  be  arrested,  see 
Gen.  Laws  of  Cal.  ^[  5,249. 

No.  531. 

ii.     To  Dissolve  a  Corporation  for  Exercising  Franchise  not  Conferred 

by  Law* 
[TITLE.] 

The  plaintiff  complains,  and  alleges : 

I.  \_Aver>  incorporation  of  defendants^  as  in  Form 
No.  51,  Vol.I.,p.  290.] 

II.  That  said  corporation,  for  the  space  of 

months  past,  has  exercised,  without  any  warrant,  charter, 
or  grant,  the  franchise  \insert  user],  and  has  [recite  its 
acts  in  this  iisurpation  of  franchise^,  and  has  exercised 
franchises  not  conferred  upon  it  by  law. 

Wherefore  the  plaintiff  demands  judgment: 

i .  That  the  defendant  \namtng  the  corporation^  be 
excluded  from  all  corporate  rights,  privileges,  and  fran- 
chises. 


506  ,  FORMS    OF    COMPLAINTS. 

2.  That  said  corporation  be  dissolved. 

3.  And  for  costs  of  this  action. 


34.  Note. — As  to  the  rules  of  pleading  in  such  cases,  see  Cal.  Pr. 
Ac/,  §§  310-316;  see,  also,  People  v.  Ravenswood  etc.  Turnpike  and 
Bridge  Co.,  20  Barb.  518;  People  -v.  Utica  Ins.  Co.,  15  Johns.  358; 
People  v.  Richardson,  4  Cow.  97. 


COMPLAINTS — SUBDIVISION  NINTH. 

Statiitory  Actions. 


CHAPTER    I. 

FOR    FORCIBLE    ENTRY    AJVD    UNLAWFUL    DETAINER. 


Jfo. 

\.     For  Forcible  Entry  and  Unlawful  Detainer. 
[TITLE.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereafter  mentioned  he  was  in 
the  peaceable  and  actual   possesion  of  all   that  certain 
piece  or  parcel  of  land   [describe  the  premises},   and  of 
the  dwelling  house,  barns,  and  sheds  thereon. 

II.  That  on   the  ....  day  of  ........  ,  1  8  .  .  ,  and 


FOR    FORCIBLE    ENTRY,    ETC.  507 

while  the  plaintiff  was  so  in  possession  of  said  land  and 
premises,  the  defendant,  with  violence  and  a  strong  hand, 
and  by  force,  entered  thereon,  and  in  a  forcible  manner 
ejected  said  plaintiff,  and  put  him  out  of  said  lands  and 
tenements,  and  broke  the  doors  and  windows  of  said 
house,  and  tore  down  and  destroyed  said  barn  and  sheds 
\or  otherwise  state  damage^  contrary  to  the  form  of 

the  statute,  and  to  the  damage  of  the  plaintiff 

dollars. 

III.  That  the  said  defendant  unlawfully  withholds  and 
keeps  possession  of  said  land  and  premises,  and  has  so 
held  and  kept  possession  of  the  same  at  all  times  since 
the  said  ....  day  of ,  1 8 . . . 

IV.  That  in  consequence  of  said  acts  the  plaintiff  has 
been  deprived  of  the  rents,  issues,  and  profits  of  said 
land  and  premises,  to  his  damage dollars. 

{Demand  of  Judgment. \ 


1.  Action — Character  of. — The  action  is  a  summary  proceed- 
ing to  recover  possession  of  premises  forcibly  or  unlawfully  detained. 
The  inquiry  in  such  cases  is  confined  to  the  actual  peaceable  possession 
of  the  plaintiff,  and  the  unlawful  or  forcible  ouster  or  detention  by  de- 
fendant, the  object  of  the  law  being  to  prevent  the  disturbance  of  the 
public  peace  by  the  forcible  assertion  of  a  private  right.  Question  of 
title  or  right  of  possession  cannot  arise;  a  forcible  entry  upon  the 
actual  possession  of  plaintiff  being  proven,  he  would  be  entitled  to 
restitution,  though  the  fee  simple,  title,  and  present  right  of  possession 
is  shown  to  be  in  the  defendant.  (McCauley  v.  Weller,  12  Cat.  500; 
Davis  v.  Mitchell,  34  Cal.  81.)  The  defendant's  title  or  right  to  the 
possession,  cannot  be  tried  on  this  action.  (Id.;  Mitchell  v.  Davis,  23 
Cal.  381.)  The  general  terms  "  actions  of  forcible  entry  and  detainer," 
as  employed  in  the  Constitution  of  the  State,  include  actions  for  the 
unlawful  holding  over  by  tenants.  (Brummagim  v.  Spencer,  29  Cal. 
661.)  The  validity  of  the  lease  under  which  the  lessee  held  the  prem- 
ises cannot  be  tried  in  this  action,  nor  can  the  lessee  be  deprived  of  the 


508  FORMS    OF    COMPLAINTS. 

advantages  resulting  from  the  possession  of  the  premises  under  the 
lease,  by  a  forcible  ouster  under  legislative  enactment.  McCauley  v. 
Weller,  12  Cal.  500. 

2.  Action  Statutory. — The  statute  provides  a  remedy  for  an 
unlawful  entry,  as  well  as  a  forcible  entry,  and  the  policy  of  it  is  doubt-' 
less  to  avoid  nice  distinctions  as  to  what  constitutes  force  in  an  entry 
upon  lands.     (Moore  v.  Goslin,  5  Cal.  266.)     It  must  be  strictly  con- 
strued.    (House  v  Reiser,  8  Cal.  499.)    The  case  must  be  governed  by 
the  provisions  of  the  Act,  so  far  as  they  go,  and  as  to  other  matters  not 
embraced  in  the  words  of  the  Act,  the  general  rules  governing  proceed- 
ings in  these  courts  will  apply.     (People  v.  Harris,  9  Cal.  572.)     As 
to  what  acts   have  been   repeated,  see  Forcible  Entry  and  Detainer 
Act,  §  15. 

3.  Actual  Possession. — The  complaint  must  show  that  the 
plaintiff  was  in  the  actual,  and  not  merely  in  the  constructive  posses- 
sion or  occupancy  of  the  premises,  within  five  days  preceding  the  entry. 
Shelby  v.  Houston,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

4.  Allegation    Construed. — The  allegation  of   a    complaint 
must  be  construed  most  strongly  against  the'pleader.     A  complaint  that 
alleges  that  he  is  in  possession  in  one  place,  and  in  another  avers  that 
he  is  not,  shows  no  cause  of  action.     (Dickinson  v.  Maguire,  9  Cal.  46.) 
If  the  plaintiff  sues  upon  one  only,  or  upon  two  of  the  causes  of  action 
mentioned  in  the  Forcible  Entry  and  Detainer  Act,  and  the  testimony 
makes  a  cause  of  action  named  in  the  Act,  but  not  set  out  in  the  com- 
plaint, it  is  the  duty  of  the  Court,  on  its  own  motion  or  on  the  motion 
of  the  plaintiff,  to  permit  him  to  amend  his  complaint  to  suit  the  testi- 
mony.    (Valencia  v.  Couch,  32  Cal.  340.)     As  to  when  complaint  may 
be  amended,  see  Forcible  Entry  and  Detainer  Act,  §  10. 

5.  Appearance. — As  to  complaint  and  fixing  day  for  appearance 
of  defendant,  and  summons,  see  Forcible  Entry  and  Detainer  Act,  §  5. 

6.  Arrest  and  Bail. — If  the  complaint  in  the  action  presented  shall 
establish  fraud,  force,  or  violence  in  making  such  entry,  or  in  holding 
such  possession,  and  that  such  possession  is  unlawful,  the  Judge  may 
also  make  an  order  for  the  arrest  of  the  defendant,  and  all  the  provi- 
sions of  law,  in  reference  to  arrest  and  bail,  shall  be  and  are  hereby 
made  the  rule  of  proceeding  to  said  arrest  and  bail  in  said  action  of 
forcible  entry  or  detainer.     Forcible  Entry  and  Detainer  Act,  §  8. 


FOR   FORCIBLE    ENTRY,    ETC.  509 

7.  Construction  of  Statute. — A  forcible  entry,  as  defined  in 
the  first  section  of  the  Act  (Stat.  of  Cal.  1865-6,  p.  768),  is  committed 
by  breaking  the  doors,  etc.,  of  the  building,  without  any  violence  to  the 
person  in  possession.     Each  mode  mentioned  in  the  statute  is  as  dis- 
tinct and  complete  in  itself  as  the  third  mode  mentioned,  that  of  the 
expulsion  of  the  party  in  possession  by  force,  threats,  or  menance,  after 
a  peaceable  entry.     (Brawley  v.  Risdon  Iron  Works,  Cal.  Sup.  Ct.,  Oct. 
T.,  1869.)     It  is  not  intended  by  the  statute  to  charge  a  party  responsi- 
bility for  a  forcible  detainer,  by  construction,  who  did  not  in  fact  detain 
the  premises.     Brawley  v.  Risdon  etc.,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

8.  Costs. — Costs  should  not  be  adjudged  to  be  paid  in  gold  coin. 
Moore  v.  Del  Valle,  28  Cal.  170. 

9.  Court  Commissioner. — Any  duly  appointed  court  commis- 
sioner of  a  county  may  perform  any  and  all  of  the  duties  in  this  act 
required  to  be  performed  by  the  County  Judge,  whenever  such  com- 
missioner is  authorized  by  law  to  perform  such  duties.     Forcible  Entry 
and  Detainer  Act,  §  14. 

10.  Damages. — The  right  to  the  rents  and  profits  comes  from  the 
right  to  the  possession  of  the  premises.     But  if  the  plaintiff  claims  the 
value  of  the  buildings  destroyed  as  damages,  the  solution  of  the  ques- 
tion would  depend  upon  the  amount  of  his  interest  in  the  building. 
(Warburton  v.  Doble,  Cal.  Sup.  Ct.,  Oct.  T.,  1869.)    And  damages  are 
not  awarded  unless  the  plaintiff  recovers  possession  of  the  premises  in 
controversy.     (Brawley  v.  Risdon  Iron  Works,  Id.}     A.,  in  pursuance  of 
the  provisions  of  the  "Act  Prescribing  the  Mode  of  Maintaining  and 
Defending  Possessory  Actions  on  Lands  Belonging  to  the  United  States," 
entered  upon  unoccupied  land,  and  marked  it  out,  so  that  its  bounda- 
ries might  be  easily  traced,  and  commenced  to  build  a  house  upon  it, 
when  he  was  ousted  by  B. :  Held,  that  in  an  action  of  forcible  entry  A. 
could  recover  the  land  from  B.,  but  without  a  fine  or  treble  damages. 
(Stark  v.  Barnes,  4  Cal.  412.)     The  complaint  in  an  action  of  forcible 
entry  need  not  pray  for  treble  damages  to  warrant  the  Court  in  treb- 
ling them.     (Hart  v.  Moon,  6  Cal.   169.)     If  a  complaint  contains 
proper  averments  of  damages  sustained,  and  plaintiff  recovers,  and 
damages  are  found,  either  by  the  Court  or  by  the  verdict  of  a  jury,  it  is 
the  duty  of  the  Court  to  treble  the  damages,  although  treble  damages 
are  not  asked  for  in  the  complaint.     Tewkesbury  v.  O'Connell,  25  Cal. 
264;  Watson  v.  Whitney,  23  Cal.  375. 


510  FORMS    OF    COMPLAINTS. 

11.  Damages  on  Appeal. — In  an  action  tried  in  the  County 
Court  on  appeal  from  a  Justice's  Court,  plaintiff  having  obtained  a  ver- 
dict for  nine  hundred  and  fifty  dollars  damages,  with  restitution  of 
the  premises,  moved  that  they  be  trebled.     Motion  denied,  and  judg- 
ment entered  for  one  hundred  and  fifty  dollars,  with  restitution  of  the 
premises.      Plaintiff  applies  to  the  Supreme  Court  for  mandamus  to 
compel   the   court   below  to   render  judgment  for  treble   damages. 
Held,  that  the  application  must  be  denied,  as  plaintiff  has  an  adequate 
remedy  by  appeal;  pending  which,  plaintiff  can  enforce  so  much  of  the 
judgment  as  awards  restitution.     The  judgment  can  be  corrected  in  this 
Court,  if  proper,  by  trebling  the  damages.    Early  v.  Mannix,  1 5  Cal.  149. 

12.  Description  of  the  Land. — In  forcible  entry  and  detainer, 
a  description  of  the  land,  sufficiently  definite  to  enable  the  administra- 
tion of  substantial  justice,  is  all  that  is  required  in  actions  before  justices 
of  the  peace.     (Hermandez  v.  Simon,  4  Cal.  182.)    Where  the  com- 
plaint described  the  premises  as  "  about  ten  rods  square,  situated  within 
and  comprising  the  northwesterly  corner  of  that  certain  piece  or  parcel 
of  land  bounded  and  described  as  follows,  to  wit:"  (and  then  goes  on  to 
give  the  metes  and  bounds  of  a  tract  containing  one  hundred  and  for- 
ty-six acres,)  "  the  said  ten  rods  square  being  situated,  etc. — the  proof 
among  other  things,  showed  this  ten  rods  to  be  called  the  northeasterly 
instead  of  the  northwesterly  corner  of  the  tract:  Held,  that  the  variance 
in  the  description  of  the  premises  did  not  prejudice  appellant;    the 
question  was  one  of  identity,  and  the  fact  that  the  corner  of  the  small 
tract  was  called  the  northeasterly  instead  of  the  northwesterly  corner 
was  itself  insufficient  to  defeat  the  action,  if  the   other  and   more 
definite  marks  of  description  sufficiently  indicated  and  identified  the 
premises.     (Paul  v.  Silver,  1 6  Cal.  73 ;  see  Green  v.  Palmer,  1 5  Id.  4 1 1 .) 
"  That  tract  or  parcel  of  land  situated  in  the  County  of  Santa  Barbara, 
and  known  as  the  Rancho  Lespe,  granted  by  the  Mexican  nation  to 
Don  Carlos  Antonio  Carillo,  by  grant  dated  November  29th,  1833,  and 
bounded   and  described    as  follows  :    bounded  by  the  Mission   San 
Fernando  and  San  Buenaventura,  situated  in  the  then  jurisdiction  of 
Santa  Barbara,  containing  six  square  leagues,  a  little  more  or  less,"  is  a 
sufficient  description.     More  v.  Del  Valle,  28  Cal.  170. 

.  13.  Force  Essential. — Force,  either  actually  applied  or  justly  to 
be  feared  from  the  conduct  of  the  defendant,  is  essential  to  the  support 
of  this  action.  (Frazier  v.  Hanlon,  5  Cal.  156.)  To  sustain  an  action 
of  forcible  entry,  or  forcible  and  unlawful  detainer,  actual  force,  threats 


FOR    FORCIBLE    ENTRY,    ETC.  5 1  I 

of  violence  in  the  entry,  or  the  just  apprehension  of  violence  to  the 
person,  must  be  shown  to  have  existed,  unless  the  detainer  be 
riotous.  But  see  Brawley  v.  Risdon  Iron  Works,  Cal.  Sup.  Ct.,  Oct. 
T.,  1869. 

14.  Forcible  Entry  Defined. — As  to  what  constitutes  a  forci- 
ble entry,  see  (Forcible  Entry  and  Detainer  Act,  §  i.)     This  section  de- 
fines a  forcible  entry  under  the  statute;  (Shelby  v .  Houston,  Cal.  Sup. 
Ct.,  Oct.  T.,  1869;)  which  is  a  distinct  offense,  and  a  separate  cause  of 
action  or  ground  for  relief,  and  must  be  separately  stated.     (Id.)     One 
who  goes  to  a  lot  in  another's  possession,  accompannied  by  several  men, 
and  builds  a  fence  around  it  while  the  former  possessor  is  remonstrat- 
ing, and  removes  him  from  the  line  of  the  fence,  where  he  places  him- 
self to  prevent  the  fence  from  being  built,  is  guilty  of  a  forcible  entry. 
(Valencia  v.  Couch,  32  Cal.  340.)     One  entering  upon  a  lot  in  the 
possession  of  another  does  not  effect  a  complete  entry  and  acquire  pos- 
session until  he  has  expelled  the  party  in  possession  and  effected  an 
exclusive  lodgment.    Id. 

15.  Forcible    Entry    and    Detainer — Who  Liable. — One 

who,  with  armed  men,  enters  upon  land  inclosed  with  a  fence,  and  in 
the  possession  of  another,  and  commences  the  erection  of  a  house,  and 
refuses  to  'deliver  up  peaceable  possession  on  demand,  but  makes  a 
show  of  force  to  retain  it,  is  guilty  of  forcible  entry  and  detainer. 
(Watson  v.  Whitney,  23  Cal.  375.)  Several  persons  were  owners  of 
separate  tracts  of  land  within  an  outside  fence  which  formed  a  common 
inclosure;  but  the  division  lilies  of  the  separate  tracts  within  the  com- 
mon inclosure  were  well  known  and  defined,  and  each  person  cultivated 
his  own  tract.  A.  and  B.,  two  of  these  owners,  disposed  of  their  tract 
to  C.  Soon  after  this  D.,  who  was  the  owner  of  another  tract  within 
the  inclosure,  went  upon  the  tract  sold  to  C.  and  commenced  plowing. 
C.  went  to  D.,  took  hold  of  his  horses,  and  commenced  turning  them 
from  the  tract,  when  D.  drew  a  pistol  and  aiming  it  at  him,  threatened 
to  hurt  him  if  he  did  not  leave.  D.  continued  plowing  the  land.  Held, 
that  the  acts  committed  by  D.  clearly  amounted  to  a  forcible  entry  and 
detainer,  and  that  the  general  outside  fence  constituted  as  full  and  com- 
plete an  actual  possession  in  the  owner  of  each  separate  tract  as  though 
it  had  been  enclosed  by  a  lawful  fence.  Hussy  v.  McDermott,  23 
Cal.  419. 

16.  Gist  of  the  Action. — A  complaint  in  an  action  under  the 
Forcible  Entry  and  Detainer  Act,  other  than  actions  against  tenants  hold- 


512  FORMS    OF     COMPLAINTS. 

ing  over  as  provided  in  said  Act,  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action,  unless  it  allege  a  forcible  entry  or  a  forcible 
detainer.  (McEvoy  v.  Igo,  27  Cal.  375.)  If  the  complaint  charges  a 
forcible  entry  with  a  multitude  of  people,  and  a  forcible  and  unlawful 
detainer,  the  forcible  entry  is  the  gist  of  the  action.  McMinn  v.  Bliss, 
31  Cal.  122. 

17.  Injunction. — Where  parties  threaten  to  take  forcible  posses- 
sion of  property,  and  the  complaint  does  not  aver  the  insolvency  of  the 
defendants,  and  that  there  is  no  adequate  remedy  at  law,  an  injunction 
will  not  be  granted.     Where  forcible  possession  is.  taken,  forcible  entry 
and  detainer  would  be  a  speedy  mode  of  regaining  possession,  and  for 
other  damages,  the  usual  proceedings  at  law  would  suffice.     Tomlinson 
v.  Rubio,  1 6  Cal.  201. 

18.  Jurisdiction. — Actions  for  the  recovery  of  the  possession  of 
any  lands  or  tenements  under  the  provisions  of  this  Act,  and  for  dam- 
ages consequent  upon  any  forcible  entry  or  detainer,  shall   be  com- 
menced and  prosecuted  in  the  County  Court  of  the  county  in  which 
such  lands  or  tenements,  or  some  portion  thereof,  may  be  situate,  and  as 
herein  provided.     {Forcible  Entry  and  Detainer  Act,  §  4.)     The  new 
county  courts,  as  organized  under  the  amended  Constitution,  January 
i,  1866,  had  authority  to  proceed,  try,  and  determine  appeals  in  cases 
of  forcible  entry  and  detainer,  pending  in  the  old  count)-  courts  on  the 
last  day  of  1863.     McMinn  v.  Bliss,  31  Cal.  122;   see  Davis  v.  San 
Lorenzo  R.R.  Co.,  Cal.  Sup.  Ct.,  Apl.  T.,  1869. 

19.  Legal  Interest.— A  judgment  for  damages  in  forcible  entry 
and  detainer  bears  interest  at  the  rate  of  ten  per  cent,  per  annum  from 
the  time  it  is  entered,  whether  it  is  so  provided  in  the  judgment  or  not; 
and  the  insertion  of  a  clause  in  the  judgment  making  it  bear  such  in- 
terest is  merely  suplusage  and  not  erroneous.     Burke  v.  Carruthers,  3 1 
Cal.  468. 

20.  Object  of  Action. — The  otrject  of  the  Act  of  1850,  exclud- 
ing the  thirteenth  section,  is  to  redress  wrongs  occasioned  by  force  used 
or  threatened  by  the  defendant,  by  restoring  possession  to  the  plaintiff, 
and  punishing  the  defendant  with  fine  and  treble  damages.     (Owens  v. 
Doty,  27  Cal.  502.     The  action  of  forcible  detainer  is  not  intended  as 
a  substitute  for  the  action  of  ejectment.     (Hodgkins  v.  Jordan,  29  Cal. 
577;  Owens  v.  Doty,  27  Cal.   502.)     The  purpose  of  the  action  is  to 
obtain  a  restitution  of  the  premises  and  damages  occasioned  by  the  for- 


f  FOR    FORCIBLE    ENTRY,    ETC.  513 

cible  entry  and  detainer,  but  when  damages  are  claimed  which  do  not 
necessarily  result  from  the  forcible  entry  or  detainer,  the  title  to  the 
property  injured  may  be  a  proper  subject  of  inquiry,  as  in  other  actions 
for  the  same  injury.  Warburton  v.  Doble,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

21.  Ouster. — In  forcible  entry  and  detainer,  if  the  proofs  show 
that  plaintiff  was  ousted  from  a  portion  only  of  the  tract  of  land  described 
in  the  complaint,  he  is  not  entitled  to  recover  damages  for  the  detention 
of  the  whole.     Thompson  v.  Smith,  28  Cal.  527. 

22.  Parties  Plaintiff — The  remedy  is  a  summary  one,  given  by 
statute  to  protect  the  possession,  and  cannot  be  extended  by  implication 
to  any  other  than  the  real  occupants.     (Treat  v.  Stuart,  5  Cal.  113.)     A 
landlord  cannot  sue  in  this  form,  in  his  own  name,  for  an  unlawful  en- 
try upon  the  possession  of  his  tenant.     (/<£)     It  can  only  be  maintained 
by  the  person  ousted ;  and  his  grantee  cannot  maintain  the  action.    (House 
v.  Reiser,  8  Cal.  499.)     The  action  may  be  brought  by  the  husband 
and  wife,  if  the  wife  is  a  sole  trader.     (20  Cal.  282.)     A  tenant  in  com- 
mon cannot  maintain  an  action  of  forcible  entry  and  detainer  against 
his  co-tenant  for  holding  over.     The  land  must  first  be  partitioned. 
Lick  v.  O'Donnell,  3  Cal.  59.% 

23.  Parties  Defendant. — No  person  other  than  the  actual  occu- 
pants of  the  premises  shall  be  necessary  parties  defendant  to  proceed- 
ings specified  in  this  Act;  nor  shall  any  action  abate  or  plaintiff  be  non- 
suited for  the  misjoinder  of  any  persons  who  might  or  should  have 
been  made  parties  defendant.     And  in  case  a  married  woman  be  a 
tenant  or  occupant,  and  her  husband  is  not  a  resident  of  the  county  in 
which  the  premises  are  situated,  her  marriage  shall  not  be  a  defense  in 
such  proceedings;  but  in  case  her  husband  be  not  joined,  or  unless  she 
be  doing  business  as  a  sole  trader,  a  judgment  against  her  shall  be  only 
valid  against  property  on  the  premises  at  the  time  of  the  commence- 
ment of  the  action.     (Forcible  Entry  and  Detainer  Act,  §  1 1 .)     An  action 
of  forcible  entry  and  detainer  will  not  lie  against  a  party  claiming  a 
right  to  land,  who  is  not  in  the  actual  possession.     (Preston  v.  Kehoe, 
10  Cal.  445.)     A  person  may  be  guilty  of  a  forcible  entry  who  is  not 
actually  present,  and  does  not  actively  assist  therein.     He  is  guilty  of  an 
entry  made  with  force  by  one  acting  at  the  time  under  his  direction  and 
procurement.     (Minturn  v.  Burr,  20  Cal.  48.)     An  action  under  the 
act  concerning  forcible   entries  and   unlawful  detainers  will   not  lie 
against  a  party  who  has  been  put  in  possession  by  a  sheriff  in  good  faith, 

33 


5  14  FORMS    OF    COMPLAINTS. 

% 

by  virtue  of  a  writ  of  restitution,  even  if  the  person  turned  out,  and 
who  brings  the  action,  was  one  whom  the  officer  could  not  lawfully  dis- 
possess by  virtue  of  the  writ.  Janson  v.  Brooks,  29  Cal.  214. 

24.  Possession. — One  entering  within  the  inclosure  of  another, 
and  building  a  house  there,  and  asserting  a  claim  to  the  inclosed  land, 
while  the  other  is  living  within  the  inclosure  and  asserting  his  posses- 
sion to  the  land,  does  not  require  actual  possession  to  enable  him  to 
maintain  the  action,  unless  it  is  to  the  land  on  which  his  house  actually 
stands,  and  so  much  as  is  absolutely  necessary  to  the  occupation  of  the 
house.     (Ross  v.  Roadhouse,  36  Cal.  580.)     See,  as  to  actual  possession 
by   inclosure   under  the    Van  Ness    Ordinance,  Satterlee   v.  Bliss,   36 
Cal.  487. 

25.  Possession  Essential. — In  actions  of  forcible  entry  and 
detainer,  the  fact  of  possession,  and  not  the  right  of  possession,  is 
what  is  to  be  determined.      (Mitchell  v.  Davis,  20  Cal.  45.)      The 
plaintiff  must  show  an  actual,  peaceable  and  exclusive  possession;  in 
him  a   scrambling   or  interrupted   possession  is  not  sufficient.     (Id.; 
House  v.  Reiser,  8  Cal.  499.)    The  plaintiff  must  have  been  in  actual 
possession;  and  when  the  land  is  public  land,  not  taken   up  under 
our  Possessory  Act,  nor  under  the  federal  laws,  such  actual  possession 
can  be   shown  only  by   actual  inclosure,  or   its  equivalent.     Merely 
putting  down  stakes,  or  marking  out  a  boundary  line,  is  not  sufficient. 
(Preston  v.  Kehoe,  15  Cal.   315.)     One  who  in  the   morning   enters 
upon  a  portion  of  a  tract  of  land  in  the  possession  of  another,  and  in- 
closes it  with  a  fence,  and  puts  a  house  on  it  before  sundown,  does  not 
acquire  such  a  peaceable  possession  as  to  enable  him  to  maintain  forci- 
ble entry  and  detainer  against  the  possessor,  who  at  sundown  destroys 
the  same  house  and  fence  and  drives  him  away.     Hoag  v.  Pierce,  28 
Cal.  187. 

26.  Possession,  Right  to  Protect. — One  who  is  in  possession 
of  a  tract  of  land  has  the  right  to  resist  and  expel  an  intruder,  if  the 
resistance    and   expulsion  take  place    before    the    possession  of  the 
intruder  had  become  actual  and  peaceable.     (Hoag  v.  Pierce,  28  Cal. 
187.)     The  law  will  not  permit  a  party  to  take  forcible  possession  even 
of  his  own  lands,  if  they  are  in  the  peaceable  though  wrongful  possession 
of  another;  and  if  he  does  so  he  will  not  only  be  compelled  to  restore 
the  possession  before  his  title  will  be  investigated,  but  will  also  be  pun- 
ished by  fine  and   further  judgment  for  treble  damages  for  his  own 

nfraction  of  the  laws.     Davis  v.  Mitchell,  34  Cal.  Si. 


FOR    FORCIBLE    ENTRY,    ETC.  515 

27.  Possession,  Sufficient.— A  person  has  possession  of  a  lot 
twenty-eight  feet  by  one  hundred  and  thirty-two.     It  is  sufficient  to  ena- 
ble him  to  maintain  forcible  entry  and  detainer,  if  it  adjoins  a  lot  upon 
which  he  lives,  and  he  has  a  stable  on   it,  arid   cultivates   it,    even 
though  the  fence  inclosing  the  whole  is  not  very  substantial.     Valen- 
cia v.  Couch,  32  Cal.  340. 

28.  Possession,  Averment  of. — The  objection  to  a  complaint 
in  forcible  entry  and  detainer,  that  it  does  not  aver  "actual  possession  " 
— the  word  "possession"  only  being  used — was  a  mere  defect  in  plead- 
ing, which  should  have  been  taken  advantage  of  below,  where,  if  the 
objection  be  good,  the  complaint  could   have  been  amended;  but  it 
cannot  be  urged  in  the  Supreme  Court  for  the  first  time.     (Minturn  v. 
Burr,  1 6  Cal.  107.)     It  is  an  essential  averment  in  the  complaint,  in  an 
action  of  forcible  entry  and  unlawtul  detainer,  that  at  the  time  of  the 
alleged   forcible   entry  plaintiff  was   in  the  actual  possession  of  the 
premises;  and  in  order  to  maintain  the  action,  plaintiff  must  prove  this 
averment  on  the  trial.     (Cummins  v.  Scott,  23  Cal.  526.)     If  the  com- 
plaint in  forcible  entry  and  detainer  sufficiently  shows  an  actual  peace- 
able possession  in  plaintiff,  it  will  be  sufficient  without  the  use  of  the 
word  "actual;"  but  it  is  bet^r  to  use  the  statutory  term.     (Morez>.  Del 
Valle,    28    Cal.    170.)      An  averment  of  title  in  forcible  entry  and 
detainer  may  be  treated  as  surplusage.     Id. 

29.  Principal  and  Agent. — Where  one  man  acts  openly  and 
avowedly  for  another  in  leasing  or  controlling  his  property,  this  is  suffi- 
cient, as  against  third  persons,  to  show  that  the  property  is  that  of  the 
person  recognized  by  the  agent  as  owner;  and  the  possession  of  the 
agent  is  the  possession  of  the  principal,  who  can  maintain  forcible  and 
unlawful  entry  and  detainer  against  such  third  persons,  whether  the 
agent  had  any  written  authority  or  not.    (Minturn  v.  Burr.  16  Cal.  107.) 
In  an  action  between  S.  and  D.,  a  writ  of  restitution  issued  command- 
ing the  sheriff  to  cause  D.  to  be  removed  from  certain  premises,  and  S. 
to  have  restitution  of  the  same.     The  return  of  the  writ  by  the  sheriff 
shows    that    he   "  put  S.,   by    his    representative    M.,   in    peaceable 
possession."     Held,  that  the  possession   under  the   writ  was  that  of 
S.,  and  not  of  M.;  that  M.  was  the  mere  agent  of  S.,  and  that  the  pre- 
sumption of  the  continuance  of  that  relation  was  not  destroyed   by 
proofs  of  acts  of  control  over  the  premises  subsequently  exercised  by  M. 
which  were  not  inconsistent  with  his  position  as  agent.     (Mitchell  v. 
Davis,  20  Cal.  45.)    After  the  service  of  the  writ,  and  while  the  rela- 


5l6  FORMS   OF    COMPLAINTS. 

tion  remained  unchanged  between  S.  and  M.,  D.  entered  upon  the 
premises,  and  an  action  under  the  forcible  entry  and  unlawful  detainer 
statute  was  thereupon  commenced  by  and  in  the  name  of  M.  against 
D.  Held,  that  M.  could  not  maintain  the  action  by  reason  of  his  want 
of  possession.  (Id.)  The  persons  by  whose  direction,  agency,  and 
procurement  the  forcible  entry  is  made,  are  liable  in  the  action. 

Minturn  v.  Burr,  20  Cal.  48. 

» 

30.  Rents  and  Profits. — Section  twelve  provides  that  "  damages 
shall    be  assessed  as  well  for  waste  and  injury  committed  upon  the 
premises  as  for  the  rents  and  profits  during  the  detainer,"  and  the  ver- 
dict shall  .find  the  monthly  value  of  the  rents  and  profits.     (Tewkes- 
bury  v.  O'Connell,   25   Cal.   264;  Watson  v.  Whitney,   23   Cal.  375.) 
The  meaning  of  this  is,  that  the  rents  are  to  be  regarded  merely  as 
damages,  and  that  their  amount  during  the  period  of  the  detention  is 
to  be  estimated  by  ascertaining  their  monthly  value.     (Howard  v.  Val- 
entine, 20  Cal.  282.)     The  plaintiff  in  an  action  under  this  section  can 
only  recover  the  rents  which  accrue  after  the  possession  of  the  tenant 
becomes  unlawful;  the  rents  accruing  prior  to  that  time  are  not  recov- 
erable.    (Id-}     The  amount  of  rents  is  immaterial,  and  whether  it  is 
one  dollar  or  one  thousand  dollars,  the  jurisdiction  is  the  same.     (Id.) 
Rents  and  profits  may  be  awarded  on  damages  without  the  value  thereof 
being  stated  in  the  complaint.     (Holmes  v.  Horber,  21  Cal.  55.)     The 
plaintiff  is  entitled  to  recover  the  monthly  rents  and  profits  during  the 
time  of  the  unlawful  detainer,  without  regard  to  the  nature  or  the 
extent  of  the  right  or  title  by  which  he  held  the  possession.     Roff  v, 
Duane,  27  Cal.  568. 

31.  Restitution  and  Damages. — As  to  restitution  and  dam- 
ages, se£  Forcible  Entry  and  Detainer  Act,  §12. 

32.  Restitution,  Writ  of. — Where  a  sheriff  refuses  to  execute 
.the  writ  on  the  ground  that  the  premises  are  in  possession  of  persons 
.not  parties  to  the  suit,  the  Court  will  award  a  peremptory  mandamus 
against  the  sheriff  to  compel  him  to  execute  the  writ.     (Fremont  v. 
Crippen,  10  Cal.  211.)     Where  in  forcible  entry  and  detainer,  plaintiff 
had  judgment  in  the  Justice's  Court,  and  was  placed  in  possession  of 
the  land  by  a  writ  of  restitution,  and  subsequently  defendant  gave  bond 
and  appealed  to  the  County  Court,  where,  after  trial,  there  was  a  verdict 
for  defendant:  Held,  that  the  County  Court  had  power,  after  reversing 
the  judgment  of  the  Justice,  to  award  defendant  a,  writ  of  restitution; 
that  such  a  writ  was  necessary  to  perfect  the  jurisdiction  of  that  Court 
over  :the  subject.     (Kennedys.  Hamer,  19  Cal.  375.     Stark  v.  Barnes, 


FOR    FORCIBLE    ENTRY,    ETC.  517 

4  Cal.  412)  does  not  hold  that  a  party  succeeding  to  the  original 
wrongful  possession  is  liable  in  action  of  forcible  entry  and  detainer  in 
the  same  manner  as  his  predecessor,  because  there  Barnes  came  in 
without  any  new  title,  and  merely  succeeded  to  the  claim,  and  consum- 
mated the  trespass  of  the  original  trespasser.  (Id.)  For  damages, 
see  Ante,  Note  10. 

33.  Separate  Statement. — Forcible  entry  and  forcible  detainer 
are  separate  causes  of  action,  and  ought  to  be  separately  stated  in  differ- 
ent counts  in  the  complaint.     If  not  so  stated  the  complaint  is  bad 
on  demurrer,  but  if  the  complaint  is  not  demurred  to,  the  objection  is 
waived.     Fraud,  if  relied  on,  should  also  be  separately  stated.     Valen- 
cia v.  Couch,  32  Cal.  340. 

34.  Showing  Required  of  Plaintiff  or  Defendant  upon 
Trial. — As  to  showing  required  of  plaintiff  or  defendant,  see  (Forcible 
Entry  and  Retainer  Act,  §  9.)     The  holding  over  of  the  law  must  be 
shown,  (Reed  v.   Grant,  4   Cal.   176,)  and  an  actual  peaceable  posses- 
sion in  himself.     (Treat  v.  Stuart,  5  Cal.  113.)     Actual  force  is  not 
necessary,  but  threats,  and  showing  an  intention  to  resort  to-  violence, 
if  resistance  is  offered,  is  sufficient.   (O'Callaghan  v:  Booth,  6  Cal.  63.) 
The  plaintiff  in  this  action  must  show  an  actual  peaceable  possession 
in  himself.     (Treat  v.  Stuart,  5  Cal.  113.)     Actual  force  is  not  neces- 
sary, but  threats  and  showing  an  intention  to  resort  to  violence  if  resist- 
ance is  offered,  is  sufficient.     (O'Callaghan  v.  Booth,  6  Cal.  63.)     The 
plaintiff  in  this  action  must  show  an  actual  peaceable  possession  in  him- 
self, at  the  time  of  the  entry.     (Treat  v.  Stuart,  5  Cal.  113.)     What  is 
actual,  and  what  is  constructive  possession,  is  a  question  for  the  jury  in 
many  cases.     (O'Callaghan  v.  Booth,  6  Cal.  63.)     Where  the  complaint 
avers  forcible  and   unlawful  entry,  and   that  the   defendant  forcibly 
detained  the  premises  so   unlawfully  taken,  forcible   entry  must  be 
proven — the  averment  of  detainer  not  being  stated  ,as  an  independent 
ground  of  relief.     (Preston  v.  Kehoe,  15  Cal.  315.)     In  such  action, 
proof  of  forcible  detainer  does  not  prove  forcible  entry.     (Id.)     If  the 
plaintiff  seeks  to  recover  on  the  ground  of  a  forcible  entry  and  detainer, 
and  the  proof  shows  that  there  was  no  actual  force,  and  that  he  neither 
apprehended,  nor  had  any  ground  to  apprehend  any  positive  act  of  vio- 
lence from  the  defendant,  he  cannot  recover.     (Thompson  v.  Smith, 
28  Cal.  527.)     The  evidence  must  tend  to  prove  an  entry  by  the 
defendants  with  strong  hand,  with  unusual  weapons,  or  with  menace  of 
life  or  limb,-  or  they  cannot  be  convicted  of  a  forcible  entry.     McMinn 
v.  Bliss,  31  Cal.  122. 


518  FORMS    OF     COMPLAINTS. 

35.  Summons. — As  to  what  summons  shall  contain,  see  Forcible 
Entry  and  Detainer  Act,  §  6. 

36.  Treble  Damages. — The  power  of  the  County  Court  to  treble 
the  damages  by  way  of  penalty  in  actions  of  forcible  entry  results  by 
necessary  implication  from  its  power  to  try  de  novo.     (O'Callaghan  v. 
Booth,  6  Cal.  63.)     If  the  complaint  in  forcible   entry  and   detainer 
avers  that  the  lands  are  in  the  county  where  the  suit  is  brought,  a  fail- 
ure to  mention  the  state  will  not  be  a  fatal  defect.     More  t>.  Del  Valle, 
28  Cal.  170.- 

37.  Waste  and  Injury. — The  Statute  of  California,  1850,  §  12, 
provides  that  damages  should  be  assessed  "as  well  for  waste  and  injury 
committed  upon  the  premises,  as  for  rents  and  profits  during  such 
detainer."     (Hicks  v.  Herring,  17  Cal.  566.)     In  1861  &e  statute  was 
amended  by  providing  that  such  damages  should  be  assessed  "tf  claimed 
in  the  complaint."     (Staf.  of  Cal.  1861,  p.  582.)    And  it  was  again 
amended  in  1863,  providing  for  the  assessment  of  "the  damages  occa- 
sioned to' 'the  plaintiff"  without  mention  of  waste  or  injury  to  the  prem- 
ises; (Stat.  of  Cal.  1863,  p.  655,  §  13;)  leaving  the  remedy  for  waste 
and  injury  to  the  premises  as  a  separate  action,  and  not  an  appendage  to 
the  action  of  forcible  entry  and  detainer.     See  Stat.  of  Cal.  1866;  War- 
burton  v.  Doble,  Cal.  Sup.  Ct.,  Oct.  T.,  1869;  Brawley  v.  Risdon  Iron 

Works,  Id. 

t 

38.  Waste    Pending   Suit. — Whether,    if  plaintiff  in   forcible 
entry  and  detainer  inserts  in  his  complaint  a  conditional  prayer,  that  if 
waste  be  committed  on  the  property  pending  the  suit,  investigation  be 
had  in  relation  thereto,  and  the  damages  occasioned  thereby  be  allowed, 
he  is  then  entitled  to  prove  such  damages,  and  have  them  assessed  by 
the  jury,  query,  (Hicks  v.  Herring,  17  Cal.  566.)     Under  the  twelfth 
section  of  our  Forcible  Entry  and  Detainer  Act,  plaintiff  is  not  com- 
pelled to  claim  damages  for  waste  and  injury,  or  for  rents  and  profits. 
He  may  simply  claim  possession;    and,  in  a  subsequent  suit,   may 
recover  damages  for  waste  committed  pending  the  action  of  forcible 
entry  and  detainer.     (Id.)     It  is  optional  with  plaintiff  either  not  to 
claim  any  damages,  or  to  claim  only  such  as  arise  from  loss  of  rents, 
or  from  waste,  or  from  both.     There  is  no  such  connection  between 
the  rents  and  profits  and  waste  committed  as  to  require  the  damages 
from  the  loss  of  the  one  and  the  commission  of  the  other  to  be  united 
in  the  demand.     (Id.)     In  actions  for  damages  for  waste,  the  rule  is, 


FOR    FORCIBLE    ENTRY,    ETC.  519 

that  the  proof  of  damage  may  extend  up  to  the  time  of  verdict  as  to  all 
facts  which  flow  as  a  natural  result  from  the  injury  for  which  suit  is 
brought.  (/</.)  But  as  to  the  action  of  waste,  see  Warburton  v.  Doble, 
Cal.  Sup.  a.,  Oct.  T.,  1869. 

39.  What  must  be  Shown.— The  plaintiff  must  show  that  he 
was  ''peaceably  in  the  actual  possession,  at  the  time  of  the  entry,"  and 
peaceable  possession  will  not  be  presumed  from  actual  possession.    War- 
burton  v.  Doble,   Cal.  Sup.  Ct.,  Oct.   T.,   1869;  citing  Stat.  of  Cal. 
1865-6,  p.  770,  §  9. 

40.  When  an  Action  can  be  Maintained. — S.  was  in  posses- 
sion of  a  quartz  mill  under  a  lease.    The  mill  had  been  run  until  one  or 
two  o'clock  in  the  morning,  when  the  employes  of  the  plaintiff  closed 
up  and  retired  to  rest  in  the  mill.     Before  daylight,  and  while  the 
hands  were  actually  sleeping  in  the  mill,  and  the  products  of  the  last 
day's  work  were  still  in  the  amalgamating  tubs,  the  defendants — some 
five  or  six  in  number — entered  the  mill,  took  possession,  commenced 
tearing  down  the  stamps  under  pretense  of  making  repairs,  and  retained 
possession  against  repeated  demands  and  protest  of  the  plaintiff  and  his 
employes.  Held,  that  these  facts  constitute  sufficient  evidence  of  force  to 
maintain  the  action  of  forcible  entry.     (Scarlett  v.  Lamarque,  5  Cal.  63 ; 
commented  on  in  Fogarty  v.  Kelly,  24  Cal.  319.)     Where  in  eject- 
ment by  B.  &  K.,  a  writ  of  restitution  was  issued  on  judgment  in  favor 
of  B.,  and  under  it  K.  was  removed  from  the  land  by  the  proper 
officer,  and  W.  put  in  possession  as  agent  of  B.,  and  then,  about  a 
month  afterwards,  W.  leased  the  premises  to  H.:  Held,  that  K.  cannot 
maintain  forcible  entry  and  detainer  against  H.,  the  lessee,  on  the 
ground  that  the  act  of  the  officer  in  removing  and  putting  W.  in  posses- 
sion was  tortious,  because  not  justified  by  the  writ.     Kennedy  v.  Hamer, 
19  Cal.  375;  Janson  v.  Brooks,  29  Cal.  214. 

41.  •  When   it   Cannot  be  Maintained. — Facts  which  might 
constitute  a   mere  trespass  upon  property  have  never  been  held  to 
sustain  the  action  of  forcible  and  unlawful  detainer.     (Frazier  v.  Han- 
Ion,  5  Cal.    156;  Merrill  v.  Forbes,   23   Cal.  379.)     So  of  one 'who 
enters  upon  land  for  the  purpose  of  cutting  and  taking  away  grass  or 
crops  growing  thereon,  without  any  intention  of  taking  possession  of 
the  land,  and  without  residing  thereon.     (Merrill  v.  Forbes,  23  Cal. 
379.)     When  one  person  has  a  house  upon  a  portion  of  a  tract  of  land 
of  one  hundred  acres  which  he  is  occupying,  and  another  person  enters 


52O  FORMS    OF    COMPLAINTS. 

upon  another  part  of  the  tract  and  erects  a  house,  without  doing  any- 
thing further,  this  act  does  not  constitute  a  forcible  entry  upon  and 
detainer  of  the  whole  tract.  (Thompson  v.  Smith,  28  Cal.  527.)  A 
sheriff  is  not  guilty  of  a  forcible  entry,  if  acting  in  good  faith,  by  virtue 
of  a  writ  of  restitution,  he  removes  from  the  premises  a  person  against 
whom  the  writ  does  not  run,  and  who  is  not  in  privity  with  any  one 
against  whom  the  writ  does  run.  Janson  v:  Brooks,  29  Cal.  214. 


JV0.  533. 

ii.    For  Forcible  Entry  and  Forcible  Detainer. 
[TITLE.] 
The  plaintiff  complains,  and  alleges: 

First — For  a  first  cause  of  action: 
I.  and  II.    [As  in  preceding  form^\ 

Second — For  a  second  cause  of  action: 

I.  'That  the  said  defendant,  by  force  and  with  a  strong 
hand  [or  by  menaces  and  threats  of  violence],  unlaw- 
fully  holds   and   keeps   possession   of  said    land   and 
premises,  and  has  so  held  and  kept  possession  of  the 

same  at  all  times  since  the  said  ....  day  of , 

1 8 .  . ,  contrary  to  the  form  of  the  statute. 

II.  That  in  consequence  of  said  acts,  the  plaintiff  has 
been  deprived  of  the  rents,  issues,  and  profits  of  said 
lands  and  premises,  to  his  damage dollars. 

• 
[Demand  of  Judgment, ,] 


41.  Forcible  Detainer  Defined. — If  any  person  shall,  by  force 
and  with  a  strong  hand,  or  by  menaces  and  threats  of  violence,  unlaw- 
fully hold  and  keep  the  possession  of  any  lands  or  tenements,  whether 
the  same  were  acquired  peaceably  or  otherwise,  such  person  shall  be 
deemed  guilty  of  a  forcible  detainer,  and  may  be  proceeded  against  as 


FOR     FORCIBLE     ENTRY,    ETC.  52! 

herein  provided.  {Forcible  Enter  and  Detainer  Act,  §  2.)  That  this 
section  defines  a  forcible  detainer,  held,  in  (Shelby  v.  Houston,  Cal. 
Sup.  Ct.,  Oct.  T.,  1869.)  For  a  further  definition  of  a  forcible  detainer 
following  an  unlawful  entry,  see  Forcible  Entry  and  Detainer  Act,  §  3. 


JVo.  534- 

iii.     For  Unlawful  Entry  and  Forcible  Detainer. 
[TITLE.] 
The  plaintiff  complains,  and  alleges: 

First — For  a  first  cause  of  action : 

I.  That  at  the  time  hereafter  mentioned,  and  for  five 
days  previous  thereto,  he  was  in  peaceable  and  actual 
possession  and  occupation  of  all  that  certain  piece  or 
parcel  of  land  [describe  the  premises'],  and  of  the  dwell- 
ing house,  barns,  and  sheds  thereon. 

II.  That  on  the day  of ,   18 . . ,  in 

the  night  time  [or  during  the  absence  of  the  plaintiff], 
the  defendant  unlawfully  entered  upon  said  lands  and 
tenements,  and  took  possession  of  the  same. 

III.  That  on  the day  of '. .  . . ,   18 . . ,  at 

,  the  plaintiff  made  a  demand  in  writing  upon 

the  defendant,  to  deliver  up  to  the  plaintiff  the  posses- 
sion of  said  land  and  premises  held  as  aforesaid,  but  the 
defendant  neglected  and  refused  for  the  period  of  five 
days  after  such  demand,  and  at  all  times  since,  to  deliver 
up  the  possession  of  the  same,  and  still  holds  and  con- 
tinues in  possession  of  said  premises,  against  the  form 
of  the  statute. 

IV.  That  in  consequence  of  said  acts,  the  plaintiff 
has  been  deprived  of  the  rents,  issues,  and  profits  of 


522  FORMS    OF     COMPLAINTS. 

said  land  and  premises,  to  his  damage dollars, 

and  has  sustained  damage  for  waste  and  injury  com- 
mitted thereon  in  the  sum  of dollars. 

[Demand  of  Judgment.  ~\ 


42.  Actual  Possession. — Where  plaintiff  had  been  in  the  peace- 
able and  quiet  possession  and  use  of  the  premises,  through  his  agent  and 
by  his  tenants,  and  the  building  being  unrented,  had  locked  the  door 
and  taken  the  key  to  his  office,  he  was  in  the  "actual  possession"  of  the 
premises,  within  the  statute  of  forcible  entry  and  detainer.     Minturn  v. 
Burr,  1 6  Cal.  107;  see  Note  48. 

% 

43.  Causes  of  Action. — The  statute  defines  two  distinct  offenses : 
First,  Forcible  entry;  Second,  Forcible  detainer.    Of  the  latter  it  gives 
two  distinct  definitions,  one  in  the  second,  and  the  other  in  the  third 
section,  and  that  fraud  on  the  part  of  the  defendant,  if  any  there  be, 
should  be  considered  a  feature  of  each  offense  and  a  ground  for  special 
damages.     (Shelby  v.  Houston,  Cal.  Sup.  Ct.,  Oct.  T.,  1869;   citing 
Valencia  v.  Couch,  32    Cal.  342.)     The  action  of  forcible  entry  and 
detainer  may  be  maintained  in  three  cases:  First,  When  the  entry  is 
forcible;  Second,  When  the  entry  js  simply  unlawful,  and  the  detainer 
forcible;  Third,  When  the  entry  is  lawful,  and  the  holding  over  forcible. 
But  in  all  cases,  there  must  be  something  of  personal  violence,  either 
threatened  or  actual.     Dickinson  v.  Maguire,  9  Cal.  46. 

44.  Distinction  of  Causes  of  Action. — F.  brought  an  action 
against  K.  for  an  unlawful  entry  and  forcible  detainer.     F.  did  not 
reside  on  the  premises,  and  his  only  possession  consisted  in  an  inclos- 
ure  and  cultivation.     K.  went  within  the  inclosure  in  the  night  time, 
erected  a  cabin,  and,  at  some  subsequent  period  of  time,  declared  he 
would  keep  possession  by  force.     The  Court  instructed  the  jury  that  if 
they  found  "  that  the  defendant  entered  upon  the  premises  in  the  night 
time,  during  the  hours  of  sleep,  while  the  plaintiff  was  in  the  actual  and 
peaceable  possession  of  the  same,  and  that  he  took  possession  and 
avowed  the  intention  to  keep  possession,  and  actually  did  keep  posses- 
sion, it  was  sufficient  evidence  of  force  to  maintain  the  action  of  forcible 
entry  and  detainer,  and  the  jury  should  find  for  the  plaintiff."  Held,  that 
the  instruction  was  erroneous,  as  applied  to  the  testimony  of  this  case, 
because  that  portion  of  it  relating  to  K.'s  intention  to  keep  possession 


FOR     FORCIBLE     ENTRY,    ETC.  523 

made  no  reference  to  any  demand  on  the  part  of  F.  for  possession,  and 
because  the  instruction  was  framed  as  though  it  related  to  a  question  of 
forcible  entry,  and  not  forcible  detainer.  Fogarty  v.  Kelly,  24 
Cal.  317. 

45.  Forcible  Detainer. — If  any  person  shall,  in  the  night  time, 
or  during  the  absence  of  the  occupant  of  any  lands  or  tenements, 
unlawfully  enter  upon  such  lands  or  tenements,  and  shall,  after  demand 
made  for  the  surrender  of  such  premises,  for  the  period  of  five  days 
refuse  to  surrender  the  same  to  such  former  occupant,  such  person  shall 
be  deemed  guilty  of  a  forcible  detainer,  and  may  be  proceeded  against 
as  herein  provided  for  such  offense.  (Fore.  Ent.  and  Dei.  Act,  §  3.) 
The  declaration  of  the  defendant  to  the  plaintiff  that  he  will  not  go  off 
the  premises,  unless  put  off  by  force  or  by  law,  does  not  constitute  a 
forcible  detainer.  (Hodgkins  v.  Jordan,  29  Cal.  577.)  The  mere  sur- 
mise of  a  person,  that  if  he  attempts  to  regain  possession,  force  will  be 
used  to  prevent  it,  is  not  enough  to  show  a  forcible  detainer,  but  an 
attempt  must  be  made  to  regain  possession,  and  either  force  or  threats 
of  force  used  to  resist  it.  (Id.}  P.  had  possession  of  a  lot  of  land,  by 
having  it  inclosed  with  a  fence,  but  did  not  reside  on  it,  nor  have  a 
house  on  it.  M.  and  D.  entered  into  possession,  and  built  a  house  on 
the  premises  and  moved  into  it.  Five  days  afterwards,  an  agent  of  P. 
went  to  the  premises  and  told  M.  and  D.  that  he  had  come  there  to 
take  possession  for  P.  They  replied  that  it  would  be  very  foolish  to 
give  up  the  lots  after  making  improvements  on  them;  that  they  would 
not  leave,  and  that  it  would  take  a  pretty  good  force  to  put  them  off; 
that  they  had  paid  their  money  for  the  lots,  and  they  would  be  d — d  if 
they  would  leave.  To  another  agent  of  P.,  M.  and  D.  used  substan- 
tially the  same  language.  Held,  that  this  did  not  amount  to  a  forcible 
entry  or  unlawful  detainer;  that  such  acts  amount  merely  to  a  trespass 
and  ouster  of  P.,  for  which  ejectment  was  the  proper  remedy.  (Polack 
v.  McGrath,  25  Cal.  56.)  A  naked  avowal  of  an  intention  to  keep  pos- 
session, and  actually  keeping  possession,  do  not  necessarily  constitute 
such  force  or  threat  of  force,  as  to  render  a  detainer  forcible,  where 
there  has  been  an  unlawful  entry,  unless  such  avowal  is  made  in  answer 
to  a  demand  for  possession  by  the  party  claiming  to  have  been  ousted, 
and  is  accompanied  by  some  act  or  word  of  the  party  making  the 
unlawful  entry,  showing  an  intent  on  his  part  to  maintain  the  possession 
by  force.  Fogarty  v.  Kelly,  24  Cal.  317. 

46.    Joinder  of  Causes. — There  are  under  the  statute  four  sepa- 


524  FORMS   OF    COMPLAINTS. 

rate  causes  of  action,  or  grounds  for  relief.  First,  Forcible  entry; 
Second,  Forcible  detainer,  under  the  second  section;  Third,  Forcible 
detainer  under  the  third  section;  and,  Fourth,  -Fraud  as  an  adjunct  of 
each,  and  these  causes  of  action  may  all  be  united  in  the  same  com- 
plaint, but  must  be  separately  stated.  Shelby  v.  Houston,  Cal.  Sup.  Ct., 
Oct.  T.,  1869. 

47.  When  Action  Cannot  be  Maintained. — If  the  entry  of 
the  defendant  was  lawful,  the  plaintiff  cannot,  when  his  right  to  the  pos- 
session has  expired,  expel  him  therefrom,  or  by  using  or  threatening 
force,  make  his  entry  unlawful.     Owen  v.  Doty,  27  Cal.  502. 

48.  Occupation. — The  party  shall  be  deemed  the  actual  occupant 
of  lands  who,  within  five  days  preceding  such  unlawful  entry,  was  in 
the  peaceable  and  undisturbed  possession  of  such  lands  or  tenements. 
{Forcible  Entry  and  Detainer  Act,  §  3.)     The  true  intent  and  meaning 
of  the  Legislature  in  the  use  of  the  word  occupant  in  the  body  of  Section 
3,  is  found  in  the  words  "  peaceable  and  undisturbed  possession,"  in  the 
same  section.     And  the  plaintiff  is  not  required  to  show  a  possession 
which  differs  at  all  from  the  possession  which  he  would  have  to  show 
were  he  seeking  relief  under  the  first  and  second  sections.     (Shelby  v. 
Houston,  Cal.  Sup.  Ct.,  Oct.  T.,  1869.)     It  has  never  been  considered 
that  an  actual  residence,  a  personal  presence,  was  in  all  cases  indis- 
pensable to  actual  possession.    On  the  contrary  actual  possession  as  much 
consists  of  a  present  power  and  right  of  dominion  as  an  actual  corporal 
presence  in  the  house.     (Murturn  v.  Burr,  16  Cal.  109.)     Under  this 
rule  the  plaintiff  might  have  had  "  a  peaceable  and  undisturbed  pos- 
session," notwithstanding  the  fact  that  he  did  not  reside  in  the  house. 
Shelby  v.  Houston,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

49.  Unlawful  Entry. — An  unlawful  entry  is  a  peaceable  entry 
made  in  bad  faith,  that  is  to  say,  without  any  bonafide  claim  or  color  of 
legal  right  to  enter,  and  not  a  peaceable  entry  made  in  good  faith, 
although  wrongfully,  that  is  to  say,  in  the  belief  that  there  is  a  legal 
right  to  enter.      (Dickinson  v.  Maguire,  9  Cal.  48;  Janson  v.  Brooks, 
2()Cal.  214;  Buckmanz>.  Whitney,  24  Cal.  267;  Thompson  v.  Smith,  28 
Cal.  532;  cited  in  Shelby  v.  Houston,  Cal.  Sup.   Ct.,  Oct.   T.,  1869.) 
The  plaintiff  must  have  had  the  actual  possession  when  the  wrongful  or 
forcible  entry  was  made;  and  if  a  forcible  detainer  alone  is  complained 
of,  -the  entry  of  the  defendant  must  have  been  unlawful.     Owen  v. 
Doty,  27  Cal.  502. 


FOR     FORCIBLE     ENTRY,    ETC.  525 

No.  535. 

i.    Holding  Over  after  Rent  Due. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the  ....  day  of ,  18 .  . , 

the  said  plaintiff,   by  a lease,   made  on  or 

about  the  said  day  at  the ,  County  of , 

leased,  demised  and  let  to  the  said  defendant,  of  the 

said ,  County    of  ....,....,  the    premises 

situate,  lying   and   being  in  the  "County  of , 

State    of     ,  and   described  as   follows,   to  wit: 

[describe  premises\,    to    have   and   to    hold   the   said 

premises,  to  the  defendant,   for  the   term  of 

months  thence  next  ensuing,  at  the   monthly  rent  of 
dollars,  payable  in  advance. 

II.  That  by  virtue  of  said  lease  the  defendant  went 
into   the    possession   and   occupation   of  the   demised 
premises,  and  still  continues  to  hold  and  occupy  the 

same. 

% 

III.  That  according  to  the  terms  of  said  lease  there 

became   due,  on  the  ....  day  of ,   1 8 . . ,  for 

the  rent  of  said  premises,  the  sum  of dollars. 

IV.  That  on  the  ....  day  of ,  18 . . ,    and 

within  one  year  after  said  rent  became  due  as  afore- 
said, by  the  terms  of  said  lease,  demand  was  made  by 

the   plaintiff    of \Jke  lessee],    for    payment 

thereof,  but  said  defendant  neglected  and  refused  to 
pay  the  said  rent,  and  the  same  remained  unpaid  for  the 
space  of  three  days  after  said  demand. 

V.  That   afterwards,    to   wit,    on   the  ....  day   of 


526  FORMS    OF     COMPLAINTS. 

,    1 8 .  . ,    at ,  County   of    , 

demand  was  made  in  writing  of  the  defendant  to 
deliver  up  the  possession  of  the  said  premises,  held  as 
aforesaid,  to  the  plaintiff,  but  said  defendant  neglected 
and  refused,  for  the  space  of  three  days  after  said  de- 
mands as  aforesaid,  to  quit  the  possession  of  the  said 
demised  premises,  or  to  pay  the  rent  thereof  due  and 
unpaid  as  aforesaid,  and  the  same  still  remains  due  and 
unpaid. 

VI.  That  said  defendant  unlawfully  holds  over  and 
continues  in  the  possession  of  the  said  premises,  after 
default  in  the  payment  of  the  rent  as  aforesaid,  and 
without  the  permission  of  the  plaintiff;  by  reason  whereof 
the  plaintiff  has  sustained  damages  in  the  sum  of 
dollars. 

Wherefore  the  said  plaintiff  prays  judgment: 

1.  For  the  sum  of dollars  damages  for 

waste  and  injury,  and  for  the  detention  of  said  prem- 
ises. 

4 

2.  For   the   sum'  of dollars,  rent   due   as 

aforesaid,  and  restitution  of  the  said  premises. 

3.  That   said   damages   may  be   trebled,  together 
with  costs  of  suit. 


FOR     FORCIBLE     ENTRY,    ETC.  527 

No.  536. 

ii.      Holding  Over  after  Expiration  of  Term. 
[TITLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the  ....  day  of ,  1 8  .  . , 

the  said  plaintiff,  by  a lease  made  on  or  about 

the   said   day,    at  the ,  County   of  ......... 

leased,    demised,    and   let   to   the   said   defendant,    of 

,   County  of ,  the  premises  situate, 

lying,  and  being  in  the ,  County  of , 

State  of ,  and  described  as  follows,    to   wit: 

\_describe  property~\,  to  have  and  to  hold  the  said  premises, 
to  the  defendant,  for  the  term  of  ....  years  from  the 

....  day   of ,  1 8 .  . ,    at   the    yearly   rent   of 

dollars,  payable   in  advance. 

II.  That  by  virtue  of  said  lease,  said  defendant  went 
into   possession   of  said  premises,  and  he  and  others 
under   him   still    continue    to    hold    and   occupy   the 
same. 

III.  That  the  term  for  which   said  premises  were 
demised  as  aforesaid  has  terminated,  and  that  the  said 
defendant  holds  over  and  continues  in  possession  of 
the  said  demised  premises,  without  the  permission  of 
the   said   plaintiff,  and   contrary  to  the  terms  of  said 
lease. 

IV.  That  the  said  plaintiff  since  the  expiration  of 
the  term  for  which  said   premises   were   demised   as 

aforesaid,  to  wit:  on  the  ....  day  of ,  18. ., 

made  demand  in  writing  of  the  said  defendant  to  deliver 
up  and  surrender  to  him  the  possession  of  said  premises. 


528  FORMS    OF     COMPLAINTS. 

V.  That  more  than  three  days  have  elapsed  since 
the  making  of  such  demand,  and  the  defendant    has 
refused  and  neglected,  for  the  space  of  three  days  after 
such  demand,  to  quit  the  possession   of  said   demised 
premises,  and  still  does  refuse,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

VI.  That  the  monthly  value  of  the  rents  and  profits 
of  the  said  premises  is  the  sum  of dollars. 

Wherefore  the  said  plaintiff  prays  judgment: 

1.  For  the  restitution  of  the  said  premises,  and  for 
damages  for  the  rents  and  profits  of  said  premises. 

2.  That  such  damages  may  be  trebled  as  damages 
for  the  occupation  and  unlawful  detention  and  holding 

over  of  the  same,  amounting  to  the  sum  of 

dollars  per  month,  besides  costs  of  suit. 

50.  Acts   Repealed. — As  to  acts  repealed,  see  Forcible  Entry 
and  Unlawful  Detainer  Act,  §  15. 

51.  Assignee. — The  assignee  of  a  lease  may  discharge  himself 
from  all  liability  under  the  covenants  of  the  lease,  by  assigning  over, 
and  the  assignment  over  may  be  to  a  beggar,  a  femme  covert,  or  a  per- 
soft  on  the  eve  of  quitting  the  country  for  ever,  provided  the  assignment 
be  executed  before  his  departure;  and  even  though  a  premium  is  given 
as  an  inducement  to  accept  the  transfer.      Johnson  v.  Sherman,  1 5 
Col.  287. 

51.  Complaint,  -what  to  Contain — Fraud  may  be  Charged. 

— The  complaint  in  such  action  shall  set  forth  the  facts  on  which  the 
plaintiff  seeks  to  recover,  and  shall  describe  the  premises  sought  to  be 
recovered  with  reasonable  certainty,  and  may  charge  that  the  defendant 
has  acted  fraudulently  in  making  such  forcible  entry  or  holding  such 
possession  by  force  (in  case  where  the  action  is  brought  for  a  forcible 
entry  or  forcible  holding),  and  may  claim  such  damages  therefor  as  he 
may  deem  proper;  and  in  case  of  rent  due  and  unpaid,  may  state  the 
amount  thereof;  and  such  complaint  shall  be  verified  in  the  mode  pre- 


FOR    FORCIBLE    ENTRY,    ETC.  529 

scribed  by  law  for  the  verification  of  pleadings  in  civil  cases.  (Forcible 
Entry  and  Unlawful  Detainer  Act,  §  8.)  Requisites  of  a  complaint  by 
a  landlord  to  recover  possession  of  demised  premises  for  non-payment 
of  rent,  see  Mayor  of  N.Y.  v.  Campbell,  18  Barb.  156. 

53.  Damages. — The  plaintiff  cannot  prove  damages  sustained  by 
the  defendants  holding  over  in  respect  to  their  property  immediately 
adjoining  the  demised  premises,  respecting  which  the  relation  of  land- 
lord and  tenant  was  not  subsisting.     (Kower  v.  Gluck,  33  Cal.  401.) 
As  to  damages,  consult  Forcible  Entry  and  Detainer  Act,  §  13. 

54.  Demand  of  Rent  and  for  Delivery  of  Possession. 

— If  a  tenant  holds  over  after  rent  has  become  due  and  remains  unpaid 
for  the  space  of  three  days,  a  demand  by  the  landlord  of  the  payment 
of  rent  and  delivery  of  possession,  both  made  at  the  same  time,  will 
enable  him  to  maintain  an  action  for  unlawful  holding  over.  It  is  not 
necessary  to  demand  rent  and  wait  three  days,  and  then  demand  pos- 
session. (Brummagin  v.  Spencer,  29  Cal.  66 1.)  A  waiver  of  the 
demand  will  never  be  implied  for  the  purpose  of  making  a  forfeiture. 
A  forfeiture  cannot  take  place  by  consent,  and  it  is  not  favored  by  the 
Tules  of  law.  (Gaskill  v.  Trainer,  3  Cal.  334.)  A  demand  for  rent 
may  be  made  at  any  time.  Forcible  Entry  and  Unlawful  Detainer  Act, 
§5- 

55.  Entry,  how  Made. — No  entry  shall  be  made  into  any  lands, 
tenements,  or  other  possessions,  but  in  cases  where  entry  is  given  by 
law,  and  in  such  case  only  in  a  peaceable  manner;   not  with  strong 
hand,  nor  with  a  multitude  of  people.     (Forcible  Entry  and  Unlawful 
Detainer  Act,  §  i.)     A  landlord  has  no  right  of  entry  for  breach  of 
covenant  in  a  lease,  and  to  forcibly  eject  the  tenant,  the  lease  reserving 
no  such  right  of  entry.      (Fox  v.  Brissac,  15  Cal.  223.)     If  the  land- 
lord does  so  enter  and  eject  the  tenant,  the  tenant  may  recover  damages 
for  the  vegetables  and  grape  vines  growing  on  the  land,  and  planted  by 
the  tenant  for  sale,  he  not  being  permitted  to  enter  and  gather  them. 
Fox  v.  Brissac,  15  Cal.  223. 

56.  Estate  at  SufFranee.— An  estate  at  suffrance  is  when  one 
comes  into  possession  of  land  by  lawful  title,  but  keeps  it  afterwards 
without  any  title  at  all.      2  Blaksi.  Com.  '150;  Taylor's  Land,  and  Ten. 
64;  see  Hawkshurst  v.  Lobree,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

57.  Fraud  Defined. — A  defendant  shall   be   deemed  guilty  of 

34 


530  FORMS    OF    COMPLAINTS. 

fraud  within  the  meaning  of  this  Act  when  the  forcible  entry  or 
forcible  detainer  is  shown  to  have  been  made  or  done  in  bad  faith, 
and  knowing  that  said  defendant  had  no  legal  right  to  make  such  entry 
or  detainer.  Forcible  Entry  and  Detainer  Act  of  1 868,  §  1 1 . 

58.  Jurisdiction. — Actions  for  the  recover}7  of  any  lands  or  tene- 
ments specified  in  the  Forcible  Entry  and  Detainer  Act  of  1863,  and 
for  consequent  damages  for  holding  over  or  not  surrendering  the  pos" 
session  of  demised  premises,  shall  be  commenced  and  prosecuted  in 
the  County  Court  of  the  county  in  which  the  said  lands  or  tenements, 
or  some  portion  thereof,  may  be  situate.     Forcible  Entry  and  Detainer 
•Mt  0/1863,  §7- 

59.  Notice  to  Quit. — By  the  terms   of  an   award   which  fwas 
decisive  between  a  landlord  and  his  tenant,  the  latter  was  to  leave  the 
premises  on  the  ninth:  Held,  that  the  plaintiff  had  no  yight  to  give 
notice  to  quit  until  the  tenth,  after  which  the  plaintiff  had  six  (now 
three)  days  (Forcible  Ent.  and  Dei.  Act  of  1863,   §  4;  6  Cal.  189)  to 
remove,  wherefore  the  action  commenced  on  the  tenth  was  premature. 
(Ray  v.  Armstrong,   4   Cal.   208.)     In  an  action  under  the  thirteenth* 
section,  where   the   evidence   showed   a   tenancy   from  year  to  year, 
plaintiff  must  showr  that  he  has  terminated  the  tenancy  by  notice  to 
quit,  and  if  the  tenant  be  permitted  to  hold  over  without  such  notice, 
a  new  term  is  created,  and  he  cannot  be  legally  dispossessed.     (Sul- 
livan  v.  Gary,  17  Cal.  80.)     When  notice  is  served  on   the   original 
lessee,  the  notice  binds  the  under  tenants  who  acquire  possession  from 
the  tenant  after  its  service;  (Schilling  v.  Holmes.  23  Cal.  227;)  a«d  they 
are  liable  to  the  landlord  for  double  the  monthly  value  of  the  prem- 
ises.  Id. 

60.  Notice,    Tenant   not   Entitled  to. — Where   defendant 
held,  as  tenant  under  J.-S.  in  his  lifetime,  under  whom  as  heir  at  law, 
the  plaintiff  claimed  as  landlord,  but  the  defendant  refused  to  recog- 
nize him  as  such:  Held,  that  this  refusal  terminated  the  tenancy,  and 
overweighed  the  presumption  of  a  contract  between  defendant   and 
plaintiff.     (Sampson  v.  Schaffer,  3  Cal.  190.)     The  denial  of  title  and 
the  relation  of  tenant  makes  defendant  a  trespasser,  and  not  entitled  to 
notice  to  quit,  and  no  special  demand  for  payment  of  rent  is  necessary 
to  make  a  forfeiture,  as  defendant  could  not  deny  title  and  yet  claim 
the  benefit  of  holding  in  subordination  to  it.     Smith  v.  Ogg  Shaw,  16 
Cal.  88. 


FOR    FORCIBLE    ENTRY,    ETC.  531 

61.  Parties. — As  to  the  necessary  parties  defendant,  see  {Forcible 
Entry  and    Unlawful  Detainer  Ac/,  §   12..)     If  a  landlord   sells   the 
leased  property  and  assigns  to  the  purchaser  the  lease,  and  the  tenant 
does  not  attorn  to  the  purchaser,  or  recognize  him  as  landlord,  the  pur- 
chaser cannot  recover  possession  of  the  premises  from  the  tenant  under 
the  act  concerning  forcible  entries  and  unlawful  detainers.     (Reay  v. 
Cotter,  29  Cal.  1 68.)     The  tenant  cannot,  by  submitting  to  being  wrong- 
fully turned  out  of  possession  under  a  writ  which  did  not  run  against 
him,  and  then  attorning  to  the  plaintiff  in  the  writ,  prevent  his  first 
landlord  from  recovering  possession  against  him  for  non-payment  of 
rent.     (Calderwood  v.  Peyser,  31   Cal.  333.)     The  right  to  remove  a 
tenant  under  the  Act  concerning  Forcible  Entries  and  Unlawful  Detainers 
is  given  to  the  conventional  landlord  alone,  and  not  to  his  successor  in 
the  estate.     (Id.;  Owen  v.  Doty,  27  Cal.  502.)     The  relation  of  land- 
lord and  tenant  is  not  dissolved  by  the  execution  of  papers  intended  as 
an  assignment  o  the  lease  to  the  landlord,  and  release  and  cancellation 
of  the  lease.     A  surrender  in  fact  of  the  demised  premises  is  essen- 
tial to  the  completion  of  a  dissolution  of  that  relation.     A  possession 
by  the  tenants,  after  the  execution  of  the  papers  mentioned,  of  the 
demised  premises,  renders  them  liable  to  be  proceeded  against  under 
the  Act  concerning  Forcible  Entries  and  Unlawful  Detainers.     Kower  v. 
Gluck,  33  Cal.  401. 

62.  Possession,  Demand  of. — As  to  demand  of  possession  and 
proceedings    thereon,    see    Forcible    Entry    and    Unlawful   Detainer 
Act,  §  4. 

63.  Possession  to  be  Restored. — Where  any  such  forcible 
entry  shall  be  made,  or  where  the  entry  shall  be  made  in  a  peaceable 
manner,  and  the  possession  shall  be  held  by  force,  the  person  so  forci- 
bly put  out,  or  so  forcibly  holden  out  of  possession,  shall  be  restored  to 
such  possession  by  action  to  be  commenced  and  prosecuted  as  in  this 
Act  provided.     (Forcible  Entry  and  Unlawful  Detainer  Act,  §  2.)     It  is 
a  settled  rule  at  common  law,  that  where  a  right  of  re-entry  is  claimed 
on  the  ground  of  forfeiture  for  non-payment  of  rent,  there  must  be 
proof  of  a  demand  of  the  precise  sum  due,  at  a  convenient  time  before 
sunset,  on  the  day  when  the  rent  is  due,  upon  the  land,  in  the  most 
notorious  place  of  it,  even  though  there  4>e  no  person  on  the  land  to 
pay.     Connor  v.  Bradley,  i  Howard  U.S.  211. 

64.  Proceedings. — The  proceeding  in  and  upon  the  trial  of  any 


532  FORMS    OF    COMPLAINTS. 

such  action  shall  be  the  same  as  in  any  other  civil  cases,  except  as 
otherwise  provided  in  the  Act.     See  Fore.  Ent.  and  Det.  Act,  §  14. 

67.  Relation  of  Landlord  and  Tenant. — The  production  of 
a  lease  in  evidence  will  not,  of  itself,  prove  the  relation  of  landlord  and 
tenant  to  have  existed  between  the  lessor  and  lessee,  but  the  entry  of 
the  lessee  under  the  lease,  or  a  holding  by  him  referable  to  the  lease, 
must  also  be  proven.     (Caldwell  v.  Center,   30  Cal.  539.)    A.,  who 
claimed  to  be  in  possession  of  a  tract  of  coal-bearing  land,  made  a 
verbal  agreement  with  B.  and  C.,  by  which  they  were  to  prospect  for 
coal  until  they  struck  a  particular  seam  or  ledge,  and  before  they  struck 
this  ledge  they  were  to  do  all  the  work  and  have  two-thirds  of  the  claim; 
but  after  the  ledge  was  struck  the  work  was  to  be  prosecuted  by  the 
parties  jointly,  A.  to  bear  one  third  of  the  expenses  and  B.  and  C. 
two  thirds:    Held,   that  this  agreement  did  not  create  the  relation  of 
landlord  and  tenant  between  A.  and  B.  and  C.,  but  that  it  made  them 
tenants  in  common,   or  partners  in  mining,  and  that  the  action  of 
unlawful  detainer  was  not  the  proper  remedy,  for  A.,  if  excluded  from 
the  premises  by  B.  and  C.     Id. 

68.  Relation  must  be  Shown. — Under  the  Forcible  Entry  and 
Detainer  Act  of  April  27,  1863,  an  action  for  an  unlawful  holding  over 
cannot  be  maintained  unless  the  relation  of  landlord  and  tenant  is 
shown  to  exist  between  the  plaintiff  and  defendant  at  the  time  of  mak- 
ing demand  for  possession,  as  required  by  Section  four  of  said  Act. 
Steinback  v.  Krone,    36  Cal.   303;   citing  as  authority  Wheelock  v. 
Warschaner,  21  Cal.  316;  and  S.C.,  34  Id.  265. 

69.  Remedy. — A  tenant  at  suffrance  is  not  entitled  to  a  notice  to 
quit.     The  statute  requiring  the  landlord  to  give  a  month's  notice  to  a 
hold-over  tenant  is  not  imperative;  the  object  is  to  give  the  landlord 
a  more  effective  and  additional  remedy  if  he  choose  to  adopt  it,    i.e. 
double  rent  after  the  service  of  the  notice  to  quit.  But  if  after  the  expira- 
tion of  the  term,  the  landlord  assents  to  further  occupation,  or  overtly  rec- 
ognizes it,  the  tenant  becomes  a  tenant  for  years.  (Hawkshurst  v.  Lobree, 
Cal.  Sup.   O.,  Jul.   T.,   1869.)     Where  the  plaintiff  does  not  claim 
double  rent,  a  notice  to  quit  is  unnecessaiy,  but  where  the  landlord 
would  avail  himself  of  the  statutory  remedy,  a  month's  notice  to  quit  is 
requisite  to  enforce  the  claim  <or  double  rent.     Hawkshurst  v.  Lobree, 
Cal.  Sup.  Ct.,  Oct.  T..  1869. 

70.  Repairs — Duty   of  Tenant. — If  the  embankment  of  a 


FOR    FORCIBLE    ENTRY,    ETC.  533 

natural  reservoir  which  is  filled  with  water  by  unusual  rains  is  broken  by 
a  stranger,  so  that  the  demised  premises  are  injured  by  the  water,  the 
injury  is  not  the  act  of  God  or  of  the  elements,  and  the  tenant  is  bound 
to  repair,  even  if  "damages  by  the  elements  or  acts  of  Providence  "  are 
excepted  from  his  covenant.  Polack  v.  Pioche,  35  CaL  416. 

71.  Showing  Required  of  Plaintiff  and  Defendant. — As  to 

what  plaintiff  must  show  on  the  trial,  and  what  defendant  is  required  to 
show,  see  Forcible  Entry  and  Unlawful  Detainer  Act,  §  10. 

72.  Tenant,  Liability,  Rights,  and  Duties  of. — An  under 
tenant,  who  takes  a  lease  and  receives  possession  from  the  tenant,  be- 
comes the  tenant  of  the  landlord,  subject  to  all  the  duties  and  liabilities 
of  a   tenant  to  the   landlord.      (Schilling  v.  Holmes,  23  CaL  227.) 
The  tenant  is  liable  to  pay  rent  until  he  has  restored  full  and  complete 
possession  to  the  landlord,  and  his  liability  to  pay  the  rent  is  not  dis- 
charged  by  an  eviction,  unless  under  a  title  superior  to  the  landlord's, 
or  by  some  agency  of  the  landlord's.     (Schilling  v.  Holmes,   23    CaL 
227.)     If  the  tenant  is  evicted  by  a  wrong  doer,  the  landlord  is  not 
bound  to  indemnify  him.     (Id.}     If  one  tenant  denies  the  relation  of 
landlord  and  tenant,  and  refuses  to  pay  rent,  he  cannot  afterwards  revive 
that  relation  by  offering  to  pay  rent.     Conner  v.  Jones,   28  CaL   60. 

73.  Tenant,  Duties  of. — One  of  the  most  important  duties  of  a 
tenant  is  to  peaceably  and  quietly  surrender  the  premises  to  the  landlord 
as  soon  as  the  tenancy  has  expired.     (Schilling  v.  Holmes,   23   CaL 
227.)     If  a  stranger  intrudes  on  the  premises  and  takes  possession, 
either  forcibly  or  otherwise,  it  is  the  duty  of  the  tenant  to  take  proper 
legal  proceedings  to  regain  the  possession,  so  that  he  may  surrender  the 
same  to  the  landlord.     Id. 

74.  Term,  Expiration  of.  — If  the  tenant  takes  a  receipt  from 
his  landlord,  specifying  the  amount  of  rent  paid,  and  the  length  of  the 
term,  to  commence  on  the  expiration  of  the  lease,  the  new  term  will  be 
for  the  time  specified  in  the  receipt.      No  new  tenancy  by  implication 
arises  in  sjuch  cases.     (Blumenberg  v.  Myres,  32  CaL  93.)     When  the 
lesser  holds  over,  and  the  landlord  receives  rents  after  the  expiration  of 
the  term,  a  new  tenancy  arises  by  implication,  subject  to  the  covenants 
and  conditions  of  the  original  lease,  but  the  new  term  is  not  necessarily 
for  one  year.     (Id.}     If  the  lessee  sub-lets  the  leased  premises  for  the 
entire  term  of  his  lease  from  the  lessor,  no  right  of  entry  remains  in  him 


534  FORMS    OF    COMPLAINTS. 

upon  the  expiration  of  the  term.  The  right  of  entry  is  in  him  who 
holds  the  reversion.  (Id.)  If  a  tenant  for  one  year  or  more,  before  the 
expiration  of  this  term  procures  the  landlord's  receipt  for  one  month's 
rent  commencing  at  the  expiration  of  the  term,  a  new  tenancy  of  one 
year  is  not  thereby  created.  Id. 

75.  Termination  of  Tenancy. — The  tenancy  is  terminated  by  an 
eviction,  and  a  subsequent  taking  and  holding  by  the  tenant,  under  a 
lease  from  the  evictor,  is  not  in  subordination  to  the  title  of  the  original 
lessor.  Steinback  v.  Krone,  36  Cal.  303;  citing  as  authority 
Wheelock  v.  Warschauer,  21  Cal.  316;  and  S.C.,  34  Cal.  265. 

16.  Unlawful  Detention. — As  to  what  constitutes  unlawful 
detention,  see  Forcible  Entry  and  Unlawful  Detainer  Act,  §  3, 


CHAPTER  II. 

STREET   ASSESSMENT. 

JVo.  537. 

i,    Common  Form, 
[TITLE.] 

The  plaintiff  complains,  and  alleges  i 

I.  That  heretofore,  to  wit:  on  or  about  the  ....  day 

of ,    1 8 .  . ,    Street,  in  the  City  and 

County  of  San  Francisco,  was,  and  had  been  before  that 
time  declared  to  be,  and  since  then  has  been,  an  open, 
public,  located,  main  street,  and  dedicated  to  public  use. 

II.  That  subsequently  to  the  day  last  aforesaid,  and 
before  the  commencement  of  this  action,   by   virtue  of 
"An  Act  Amendatory  of  Article   IV.   of  an  Act,"  etc., 

f  the  Legislature  of  said  State,  in  regard  to  the  City 


FOR    STREET   ASSESSMENT.  535 

and  County  of  San  Francisco,  being  a  public  act  ap- 
proved April  25th,  1862;  also,  of  another  act  amenda- 
tory of  the  above  Act,  approved  April  25th,  1863,  and 
of  the  acts  supplementary  thereto  and  amendatory 
thereof,  the  proceedings  hereinafter  stated  took  place, 
that  is  to  say: 

III.    That  on  the  ....  day  of  .........  ,  1  8  .  .  ,  the 

Board  of  Supervisors  of  said  City  and  County  made 
and  passed  a  resolution,  wherein  and  whereby  said 
Board  resolved  that  it  was  their  intention  to  order  the 
following  described  work  in  said  City  and  County  to 
be  done,  to  wit: 


IV.  That  said  resolution  was  signed  by  the  Clerk  of 
the  Board,  and  was  afterwards  published  in  the  .......  , 

a  daily  newspaper  published  in  said  City  and  County, 
and  doing  the  printing  by  contract  for  said  City  and 
County,  for  ten  days,  commencing  on  the  ....  day  of 

........  ,  1  8  .  .  ,  and  continued  therein  for  ten  success- 

ive days  (Sundays  excepted). 

V.  That   afterwards,    to    wit:   on    the    ....    day    of 
........  ,  18..,  a  resolution,  ordering  and  providing 

for   said    work    to    be   done,    was    introduced   in    and 
adopted  and  passed  by  said  Board  of  Supervisors. 

VI.  That  afterwards,  on  the  ....  day  of  ........  , 

1  8  .  .  ,  the  said  Board  of  Supervisors  caused  full  and  due 
notice  of  the  nature  and  character  of  said  work  to  be 
done,  with  specifications  in  detail,  to   be  conspicuously 
posted  and  kept  posted  in  the  office  of  the  Superin- 
tendent of  Public  Streets  and  Highways  of  said  City  and 
County,  for  five  successive  days,  and  to  be  published 
for  five  successive  days  (Sundays  excepted),  commenc- 


536  FORMS    OF     COMPLAINTS. 

ing  on  the  said  last  named  day,  in  the  aforesaid  news- 
paper, inviting  sealed  proposals  for  doing  said  work. 

VII.  That  on  and  before  the  ....  day  of , 

1 8 . . ,  various  proposals  were  delivered  to  the  Clerk  of 

said  Board  of  Supervisors  to  do  said  work;  that , 

plaintiff  herein,  delivered  to  said  Clerk  one  of  the  said 
sealed   proposals   by  which  he  proposed  and  offered 
to  do  said  work,  fully  in  all  respects  as  required  by  the 
said  specifications,  which  are  hereinafter  set  forth,  at  the 
following  prices,  to  wit:   [state  terms  of  proposal.] 

VIII.  That  said  proposal  of  said was  ac- 
companied with  a  good  and  sufficient  bond  in  the  sum 

of  one  thousand  dollars,  signed  by  the  said 

and  two  sureties,  which  sureties  were  residents  and  free- 
holders of  said  City  and  County,  who  justified  before 
an  officer  duly  authorized  to  administer  oaths  in  and  for 
said  City  and  County,  in  the  above  amount  mentioned 
in  said  bond  over  and  above  all  debts  and  exemptions, 
conditioned  to  pay  to  the  Street  Department  Fund  the 
full  sum  of  one  thousand  dollars,  as  liquidated  damages, 
if  the  contract  should  be  awarded  to  him  and  he  should 
fail  or  neglect  to  enter  into  a  contract  to  do  said  work 
as  provided  by  law. 

IX.  That  on  the  ....  day  of ,  18. .,  said 

Board,  in  open  session,  opened  and  examined  all  said 
proposals,  and  publicly  declared  the  same,  and  then  and 
there  duly  awarded  the  said  work,  and  the  contract  for 

doing  said  work  to  said ,  who  was  the  lowest 

responsible  bidder,  at  the  price  stated  aforesaid. 

X.  That   afterwards,  to   wit :    on    the    ....    day    of 
,  1 8  . . ,  the  said  Board  of  Supervisors  caused 

due  notice  of  said  award  to  said ,  and  of  the 


FOR    STREET   ASSESSMENT.  537 

particulars  thereof,  to  be  published,  and  thereafter  con- 
tinued, in  the  aforesaid  newspaper,  for  a  period  of  five 
successive  days  (Sundays  excepted). 

XI.  That   afterwards,    to    wit:  on  the  ....  day    of 

,  18.  .,  the  owners  of  the   major  parts   of  the 

lots  and  lands  liable  to  be  assessed  for  said  work,  not 
having  been  required  to  present  sealed  proposals,  and 
not  having-  elected  at  any  time  to  take  and  enter  into  a 
contract  to  do  the  said  work  at  the  price  at  which  it  had 
been  awarded  as  aforesaid,  or  at  any  other  price,  the 
said  Superintendent,  in  his  official  character,  did  then 
and  there,  in  pursuance  of  said  award,  duly  enter  into  a 
certain   written    contract,    with    specifications    thereto 
attached,   and  forming  a   part   thereof,  with   the   said 

,    whereby   and   wherein   the    said 

agreed  that  he  would  do  and  perform,  under  the  direc- 
tion of  the  said  Superintendent,  in  a  good  and  work- 
manlike manner,  and  with  such  materials  as  should  be 
required  by  said  Superintendent  to  be  furnished  by  the 
said  party  of  the  first  part  therein,  all  the  aforesaid 
mentioned  work,  according  to  said  contract  and  speci- 
fications, at  the  price  stated  aforsaid,  a  copy  of  which 
said  contract  and   specifications  is  hereunto  annexed, 
and  marked   "Exhibit  A,"   and    made  a  part  of  this 
complaint. 

XII.  That  the  said ,  at  the  time  of  entering 

into  said  contract,  gave  a  bond  payable  to  the  City  and 

County  of  San   Francisco,   in  the  sum  of 

dollars,  that  sum  being  deemed  adequate  by  the  Super- 
intendent, with  two  good  and  sufficient  sureties,  who 
justified  each  for  himself,  in  double  the  amount  in  said 
bond  specified,  over  and  above  all  statutory  exemp- 
tions, before ,  in  and  for  said  City  and  County,  • 


538  FORMS    OF     COMPLAINTS. 

conditioned  for  the  faithful  performance  of  said  contract, 
which  said  bond  was  duly  accepted  by  said  Superintend- 
ent, and  placed  on  file  in  his  office. 

XIII.  That  said  plaintiff  did  all  the  work  in  said  con- 
tract and  specifications  mentioned,  and  duly  performed 
all  the  conditions  therein  contained  to  be  performed 
on  his  part,  in  every  respect  according  to  the  terms 
of  said  contract  and  specifications,  under  the  direction 
and  to  the  satisfaction  of  said  Superintendent,  and  the 
said  work  was  duly  approved  by  said  Superintendent, 
who  thereupon  proceeded  to  assess  and  apportion,  and 
did  assess  and  apportion  the  total  amount  of  expense 
of  said  work  necessary  to  be  assessed  to  cover  the  sum 
due  for  said  work  and  the  incidental  expenses  thereof, 
to  wit :  the  sum  of  ....  dollars  upon  the  lots  and  lands 
whereon  said  work  was  done,  each  lot  or  part  of  .... 

lot  .  .  .  : being  separately  assessed  in  proportion 

to  its  frontage  at  the  rate  hereinafter  stated  per  foot 
front,  which  rate  was  sufficient  to  cover  the  total 
expense  of  such  work,  which  assessment  briefly  referred 
to  the  contract,  the  work  contracted  for  and  performed, 
and  showed  the  amount  to  be  paid  therefor,  the  inci- 
dental expenses,  the  rate  per  foot  assessed,  the  amount 
of  each  assessment,  the  name  of  the  owner  of  each  lot 
assessed,  when  known,  and  when  the  name  was  unknown 
the  word  "unknown"  was  written  opposite  the  number 
of  the  lot,  or  portion  of  land,  and  the  amount  assessed 
on  said  lot,  or  portion  of  lot,  the  number  of  each  lot,  or 
portion  of  lot  assessed;  and  said  assessment  was  signed 
by  said  Superintendent,  and  had  attached  thereto  a  dia- 
gram exhibiting  each  street  and  street-crossing,  lane, 
alley,  place  or  court  on  which  said  work  was  done,  and 
showing  the  relative  location  of  each  distinct  lot,  or  por- 


FOR    STREET    ASSESSMENT.  539 

tion  of  a  lot,  to  the  work  done,  and  numbered  to  corres- 
pond with  the  numbers  in  said  assessment;  and,  also, 

showing  the  number  of  feet  fronting  on ,  and 

assessed  for  said  work  contracted  for  and  performed, 
and  to  which  assessment  was  attached  the  warrant 
issued  in  said  case,  and  hereinafter  described. 

XIV.  That  by  said  assessment  and  diagram,  the  lot 
of  land   hereinafter   described   was   assessed   on  said 
assessment  roll  as  the  property  of 

XV.  That  the  said  defendant,  at  and  during  all  the 
time  of  taking  all  the  aforementioned  preceedings,  and 

particularly    on  the  ....  day  of ,    1 8 .  . ,  was, 

and  still  continues  to  be  the  owner  of  certain  portions 
of  the  lots  and  lands  aforesaid  assessed,  and  liable  to 
assessment  as  aforesaid,  for  the  work  so  done  as  afore- 
said; that  is  to  say,  the  defendant ,  now  and  on 

the  day  last  mentioned  was,  and  ever  since  then  has 
been  the  owner  in  fee,  and  in  possession  of,  and  has 
claimed,  and  exercised  acts  of  ownership  over  the  fol- 
lowing described  lot  of  land  situate   in  the  said  City 
and  County,  being  adjacent  to  said  work  and  fronting 
thereon,  and  liable  to  assessment  to  cover  the  expenses 
of  the  same,  to  wit:    \_describe  land.~\ 

XVI.  That  by  and  according  to  assessments  afore- 
said, the  said  lot  of  land  above  mentioned  and  described 

was  assessed  as  aforesaid,  to  pay  the  sum  of 

dollars,  rated  at dollars  per  front  foot. 

XVII.  That  on  or  about  the  ....  day  of , 

1 8 .  . ,  the  said  Superintendent  duly  issued  and  deliv- 
ered a  certain  warrant,  with  said  assessment  and  diagram 

attached,    to   the   said    ,  which   warrant   was 

signed  by  said  Superintendent,  and  dated  the  ....  day 


54-O  FORMS    OF     COMPLAINTS. 

of ,  1 8 .  . ,   and  countersigned  by  the  Auditor 

of  said  City  and  County,  in  his  official  character  as 
said  Auditor,  who,  before  signing  the  same,  examined 
the  said  contract,  and  the  steps  taken  previously  thereto, 
and  the  record  of  assessment,  and  was  satisfied  that 
the  proceedings  had  been  legal  and  fair;  which  warrant, 
with  assessment  and  diagram  attached,  referring  to  the 
contract  and  the  work  contracted  for  and  performed,  as 
hereinbefore  particularly  stated,  authorized  the  said 

,  or  assigns,  to  demand  and  receive  the  amount 

of  assessment  made  as  aforesaid.  Said  warrant,  diagram 
and  assessment  roll  were  duly  recorded  by  said  Super- 
intendent, in  the  office  of  said  Superintentent,  in  a 

book  kept  by  him  for  that  purpose,  viz:  Vol ,  page 

.  .  .  .  ,of  the  Assessment  Roll  Book,  and  the  record  thereof 
was  duly  signed  by  said  Superintendent,  and  was 
substantially  in  the  form  prescribed  by  the  statute  in 
such  case  made  and  provided.  That  prior  thereto  all 
incidental  expenses  had  been  paid. 

XVIII.  That  afterwards,  and  within  ten  days  after 
the  ....  day  of ,  1 8 .  . ,  by  virtue  of  said  war- 
rant, assessment  and  diagram,  said publicly 

demanded  payment  of  said    sum  on  the  premises  so 
assessed, in  due  manner  and  form. 

XIX.  That    the    said    defendant,    though    demand 
has  been  made  as  aforesaid  for  the  payment  of  the  said 

sum  of dollars,  as  aforesaid  assessed,  has  not 

paid  any  part  thereof,  but  has  refused  so  to  do,  and  still 
does  refuse. 

XX.  That  thereafter,  within  ten  days  from  the  date 

of  said  warrant,  to  wit:  on  the  ....  day  of , 

18..,  the  said  warrant  was  duly  returned  to  the  said 
Superintendent,  with  a  return   thereon,  signed  by  said 


FOR    STREET   ASSESSMENT.  54! 

,  verified  by  his  oath,  stating  the  nature  and 

character  of  the  demand  as  set  forth  aforesaid,  and 
whether  any  of  the  said  assessments  remain  unpaid  in 
whole  or  in  part,  and  the  amounts  of  said  assessments  so 
unpaid  were  fully  stated,  as  also  the  fact  that  said  sum 
of  money  so  assessed  on  the  lot  of  land  above  described 
had  been  demanded,  as  stated  aforesaid,  and  still 
remained  unpaid. 

XXI.  That    thereupon    the    Superintendent    duly 
recorded  the  said  return  so  made  upon  said  warrant  in 
the  margin  of  the  record  of  said  warrant  and   assess- 
ment, and  also  the  original  contract  referred  to  therein, 
at  full  length,  in  a  book  kept  by  him  for  that  purpose  in 
his  office,  and  signed  the  said  record. 

XXII.  That  more  than  fifteen  days  have  elapsed 
since  the  day  of  the  date  of  said  warrant,  and  no  per- 
son has  appealed  to  said  Board  of  Supervisors  concern- 
ing  the    acts,    proceedings    or   determination    of    said 
Superintendent  in  relation  to  said  work,  diagram,  war- 
rant or  assessment,  or  either  of  them. 

XXIII.  That  all  acts  of  said  Superintendent  herein 
mentioned  and  referred  to  were  done  by  him  in    his 
official  character  of  Superintendent  of  Public   Streets 
and  Highways  in  said  City  and  County.     And  that  said 
sum  of  ....  dollars,  being  the  sum  assessed  by  him  on 
said  lot  of  land  hereinbefore  described,  has   not  been 
paid,  nor  any  part  thereof,  but  still  remains  due  and 
unpaid,  although  the  same  has  been  demanded  as  stated 
aforesaid,  with  interest  thereon  at  the  rate  of  ....  per 
cent,  per  month,  from  the  ....  day  of 1 8 . . . 

Wherefore  the  plaintiff  demands  judgment: 

i.    For  ....  dollars,  with  interest  at  the  rate  of  .... 


542  FORMS    OF     COMPLAINTS. 

per  cent,  per  month  from  the  ....  day  of 

1 8 . . ,  and  that  it  be  adjudged  a  lien  against  the  land 
described  aforesaid,  and  that  said  land  be  adjudged  and 
decreed  to  be  liable  for  the  payment  of  the  same. 

2.  That  a  decree  in  due  form  may  be  made  for  the 
sale  of  said  premises  in  the  said  complaint  mentioned, 
by  the  Sheriff  of  said  County,  according  to  law  and  the 
practice  of  this  Court,  and  the  proceeds  of  sale  applied 
in  payment  of  the  amount  due  to  the  plaintiff. 

3.  That   said   defendant   and  all    persons   claiming 
under    him    subsequent    to  the    date  of   this  warrant, 
either  as  purchasers,  incumbrancers,  or  otherwise,  may 
be  barred  and  foreclosed  of  all  right,  claim  or  equity  of 
redemption  in  the  said  premises,  and  every  part  thereof. 

4.  That  the  plaintiff  or  any  other  parties  to  the  suit 
may  become  purchasers  at  such  sale. 

5.  That  plaintiff  be  allowed  counsel  fees  in  the  sum 
of  fifteen  dollars,  and  also  five  per  cent,  in  the  amount 
recovered. 

6.  And  that  plaintiff  may  have  such  other  and  fur- 
ther order  of  relief  in  the  premises  as  the  case  may 
require,  and  as  to  this  Court  may  seem  just  and  equita- 
ble, together  with  the  costs  of  this  action. 

[  Verification.] 


NOTE. — This  form  is  in  substance  the  form  in  use  in  San  Francisco 
in  this  class  of  actions.  The  courts  have  held  that  each  step  necessary 
to  be  taken  by  the  various  officers  in  street  assessment  cases  must  be 
alleged,  and  hence  its  extraordinary  length. 

1.  Action,  who  may  Maintain. — In  suing  a  lot  owner  for  a 
street  assessment,  the  contractor  is  quasi  assignee  or  agent  of  the  city, 
and  is  vested  with  all  her  rights.  (Hendrick  v.  Crowley,  31  Cal.  471.) 


FOR    STREET    ASSESSMENT.  543 

The  assignee  of  the  contractor  may  sue  the  assignor.  (Id.)  A  demand 
by  the  contractor  against  the  owner  of  a  lot  in  San  Francisco,  for  assess- 
ment on  the  lot  for  street  improvement,  is  assignable.  (Cochran  v. 
Collins,  29  Cal.  129.)  Where  in  such  case  said  debt  has  been  assigned 
to  and  was  exclusively  owned  by  a  private  individual  before  said  last 
enactment,  the  tax  thereby  imposed*  .was  no  less  for  that  reason 
a  public  benefit.  (Beals  v.  Amador  County,  35  Cal.  624.)  Section 
fifty-nine  of  the  Consolidation  Act  of  1856,  as  amended  in  1859,  author- 
ized a  contractor  upon  the  completion  of  his  work,  to  sue  each  delin- 
quent owner  for  the  amount  of  his  assessment  In  March,  1 86 1,  a  contract 
was  entered  into  with  the  plaintiff  for  grading  a  certain  street,  and  the 
work  under  it  was  completed  by  him  in  April.  May  18,  1 86 1,  an  act 
was  passed  repealing  Section  fifty-nine.  In  August,  1861,  plaintiff  com- 
menced an  action  against  one  of  the  delinquent  owners,  to  recover  the 
amount  assessed  against  him.  Held,  that  plaintiff's  right  to  maintain  the 
action  was  not  impaired  by  the  repealing  act,  that  the  right  to  sue  the 
property  owners  was  a  part  of  the  contract,  and  could  not  be  taken 
away  by  legislation  subsequent  to  his  performance  of  the  work. 
(Creighton  v.  Pragg,  21  Cal.  115.)  If  an  assessment  in  the  City  of 
Sacramento  is  not  paid,  the  District  Attorney  must  sue  the  person 
assessed,  the  real  estate,  and  all  owners  and  claimants ;  (Mayo  v . 
Ah  Lay,  32  Cal.  477;)  but  the  street  assessment  act  of  Sacramento  is 
entirely  different  than  that  of  San  Francisco. 

2.  Adding  Five  Per  Cent.— The  Tax  Collector  of  the  City  and 
County  of  San  Francisco  has  no  authority  to  add  five  per  cent  to  an 
assessment  for  widening  Kearny  Street,  on  failure  of  the  owner  to  pay 
the  assessment  when  due.     Bucknall  v.  Story,  36  Cal.  67. 

3.  Appeal  from  Decision  of  Superintendent. — The  owner 
of  a  lot  of  ground  sued  for  street  improvements  in  San  Francisco,  can- 
not show  in  defense  that  the  contractor  did  not  perform  his  work  accord- 
ing to  the  contract,  if  the  Superintendent  of  Streets  has  accepted  the  work 
as  completed.      His  remedy  is  an  appeal  from  the  decision  of  the 
Superintendent  to  the  Board  of  Supervisors.     (Cochran  v.  Collins,  29 
Cal.  129;   Emery  v.  Bradford,  29  Cal.- 75;   Taylor  v.  Palmer,  31  Cal. 
248;    Beaudry  v.  Valdez,  32   Cal.  278;    cited  in  Shepard  v.  McNeil, 
Cal.  Sup.  Ct.,  Jul.  T.,  1869.)     He  cannot  introduce  evidence  to  prove 
that  the  work  was  not  done  according  to  the  specifications  of  the  con- 
tract, -nor  in  accordance  with  the  ordinance.     He  must  appeal.     (Emery 
v.  Bradford,  29  Cal.  75.)     The  failure  to  appeal  to  the  board,  however 


544  FORMS    OF    COMPLAINTS. 

much  it  may  cure  errors,  will  net  vitalize  a  void  assessment.  Where 
a  lot  is  not  liable  to  be  assessed  for  repairs  under  the  Consolidation  Act, 
the  owner  thereof  is  not  a  party  directly  interested  in  the  contract,  work, 
or  assessment,  within  the  forty-fifth  section,  and  is  not  bound  to  appeal 
from  the  assessment.  This  section  does  not  mean  that  a  mere  stranger 
to  the  locality  must  appeal  from  the  assessment  to  the  Board  of  Super- 
visors, or  be  cut  off  from  his  defense.  (Bassett  v.  Enright,  19  Cal. 
635.)  If  the  person  who  contracts  with  a  street  superintendent  in  San 
Francisco  to  improve  a  street,  before  the  contract  is  made,  makes  a 
private  contract  with  part  of  J;he  owners  of  the  lots  liable  to  be  assessed 
for  the  improvement  to  do  their  work  for  less  than  the  price  allowed 
by  the  contract,  this  private  contract  is  in  fraud  of  the  law  under  which 
the  streets  are  improved,  but  the  fraud  is  no  defense  in  an  action  by 
the  contractor  to  recover  the  assessment,  and  must  be  taken  advantage 
of  by  an  appeal  or  a  remonstrance  to  the  Board  of  Supervisors.  Nolan 
v.  Reese,  32  Cal.  484. 

4.  Apportionment. — It  rests  in  the  discretion  of  the  Legislature  to 
say  upon  what  principle  the  assessment  of  lots  fronting  on  a  street  to  pay 
for  improvements  on  the  street  shall  be  apportioned  among  the  lots. 
(Emery  v.  San  Francisco  Gas  Co.,  28  Cal.  345.)     If   commissioners 
appointed  to  assess  damages  and  estimate  benefits  to  lot  owners  for 
widening  a  street  apportion  the  amount  of  money  to  be  raised  into  two 
or  more  parts,  one  part  of  the  property  holders  of  the  street  to    be 
widened,  and  another  part  of  the  owners  of  property  fronting  on  the 
cross  streets  determined  to  be  benefited,  and  no  complaint  is  made  to 
the  correctness  of  this  apportionment,  the  owners  of  lots  in  the  streets 
to  be  improved  cannot    complain  of  the  manner  in  which  the  part 
apportioned  to  the  cross  streets  is  afterwards  apportioned  among  the  prop- 
erty  holders  on  those  streets,  and  vice  versa.     Appeal  of  Piper,  32 
Cal.  530. 

5.  Assessment  Defined. — The  assessment  as  to  the  property 
assessed  is  essentially  a  tax,  and  taxes  do  not  draw  interest.     (Dougherty 
v.  McAlpine,  Oct.  T.  1867;  held  otherwise  in  Creighton  v.   Manson, 
27  Cal.  613.)     The  word  assessment  is  employed  in  the  Constitution  to 
represent  those  local  burdens  imposed  by  municipal  corporations  upon 
property  bordering  upon  an  improved  street,  for  the  purpose  of  paying 
the  cost  of  the  improvement,  and  laid  with  reference  to  the  benefit  the 
property  is  supposed  to  receive  from  the  expenditure  of  the  money. 
Property  not  benefited  by  the  improvement  cannot  be  subject  to  an 


FOR    STREET   ASSESSMENT.  545 

assessment  for  it.  (Taylors.  Palmer,  31  Cal.  240.)  Street  assessments 
in  Sacramento  are  required  to  be  levied  and  collected  as  provided  in 
the  general  revenue  laws  of  the  State.  Mayo  v.  Ah  Lay,  32  Cal.  477. 

6.  Authentication. — The  making  of  an  assessment  is  an  official 
act  on  the  part  of  the  superintendent,  and  its  character  and  authority  can 
be  attested  in  only  one  manner,  and  that  is  the  official  signature  of  the 
superintendent.  Signing  the  warrant  only  is  not  sufficient.  (Himmel- 
man  v.  Danos,  35  Cal.  441;  Dougherty  v.  Hitchcock,  35  Cal.  512; 
affirming  Emery  v.  Bradford,  29  Cal.  86;  see,  also,  McGlynn  v.  Jones, 
Cal.  Sup.  Ct.,  Jan.  T.}  1869.)  An  assessment  not  thus  officially  tested, 
though  attached  to  the  diagram  and  the  superintendent's  warrant,  which 
were  in  due  form  and  properly  attested,  does  not  constitute  a  valid 
assessment,  and  is  not  admissible  in  evidence,  either  by  itself  or  in  con- 
nection with  the  warrant  and  diagram.  In  such  case  the  defect  in  the 
contract  is  not  cured  by  the  failure  of  the  lot  owners  to  appeal  for  its 
correction  to  the  Board  of  Supervisors,  because,  had  an  appeal  been  taken, 
the  defect  could  not  have  been  remedied  by  the  Board.  (Dougherty  v. 
Hitchcock,  35  Cal.  512.)  It  is  not  material  in  what  form  the  superin- 
tendent signed  the  original  assessment,  provided  it  is  afterwards  properly 
signed  in  due  time  to  constitute  a  lien,  which  is  the  material  thing  to  be 
done.  (Shepard  v.  McNeil,  Cal.  Sup.  Ct.,Jul.  71,  1869.)  If  the  super- 
intendent "originally"  fails  to  authenticate  his  record  by  his  official 
signature,  it  is  his  duty  afterwards  to  make  a  valid  assessment.  Under 
the  provisions  of  Section  3  of  the  Act  of  1862,  the  Mayor  of  the  City 
and  County  of  San  Francisco  is  not  required  to  sign  a  resolution  of  the 
Board  of  Supervisors  declaring  their  intention  to  improve  a  public 
street.  (Cochran  v.  Collins,  29  Cal.  129;  Hendrick  v.  Crowley,  31 
Cal.  471.)  Nor  need  it  be  presented  to  the  Mayor  for  his  approval. 
Taylor  v.  Palmer,  31  Cal.  240;  affirmed  in  Gaffney  v.  Gough,  36 
Cal.  241. 

1.  Authority  of  Municipal  Government. — The  municipal 
government  of  a  city,  in  causing  street  improvements  to  be  made,  acts 
under  the  authority  conferred  upon  it  by  the  Legislature,  and  has  no  other 
and  greater  power  than  is  and  lawfully  may  be  conferred  on  it  by  the 
legislative  act.  Creightonp.  Manson,  27  Cal.  613. 

i  8.  Award  of  Work. — Where  bidders  were  notified  to  put  in 
separate  bids  for  each  of  two  blocks  and  the  crossing,  and  by  resolution 
of  award  the  contract  for  the  whole  work  was  awarded  to  the  lowest  bid- 

35 


546  FORMS    OF     COMPLAINTS. 

der  at  specified  prices  for  each  block  and  the  street  crossing,  etc.,  the 
contract  entered  into  was  for  one  block  only:  Held,  that  the  contract  was 
wholly  unauthorized.  (Dougherty  v.  Hitchcock,  35  Cal.  512.)  The 
resolution  of  award  is  the  letter  of  authority  to  the  superintendent,  and 
he  has  no  more  power  to  contract  for  the  performance  of  only  a  part  of 
the  work  therein  specified  than  of  additional  work.  Id. 

9.  Benefits  Resulting  to  Property.— It  is  not  erroneous  for 
commissioners  appointed  to  estimate  the  benefits  that  will  result   to 
property  holders  by  the  widening  of  a  street,  to  assess  the  same  upon  the 
hypothesis  that  all  lots  in  the  street  will  be  benefited  in  the  ratio  of  their 
values,  provided  there  is  evidence  warranting  such  a  conclusion.    (Ap- 
peal of  Piper,  32  Cal.  530.)      A  statute  authorizing  the  Board  of  Super- 
visors of  the  City  and  County  of  San  Francisco  to  determine  what  part 
of  the  City  will  be  benefited  by  the  widening  of  the  street,  and  to  assess 
the  specific  portion  of  the  City  thus  determined  to  be  peculiarly  bene- 
fited, is  constitutional.    (Id.)    The  benefit  is  immediate  to  the  adjacent 
property  holders,  and  only  indirectly  to  the  City  at  large.     (Argenti  v. 
San  Francisco,  16  Cal.  255.)     Benefits  to  accrue  to  land  resulting  from 
the  widening  of  a  street,  accrue  to  the  owner  through  his  estate  in  the 
land,  whether  the  estate  be  a  fee  on  a  lease  holder,  and  not  ihrough  the 
buildings  thereon.   The  enhancement  in  value  accrues  to  the  land,  and 
not  to  the  buildings.      (Appeal  of  Piper,  32  Cal.  530.)     The  commis- 
sioners appointed  to  estimate  benefits  and  assess  damages  for  widening 
a  street  in  San  Francisco,  under  the  Act  of  April  4th,  1864,  may  properly 
assess  the  expenses  to  be  borne  by  a  lot  which  is  under  lease  to  the 
owner  of  the  fee,  where  the  benefits  all  accrue  to  such  owner,  without 
apportioning  any  part  to  the  lessee.    Appeal  of  Reese,  32  Cal.  567.)    If 
under  the  power  to  take  private  property  for  public  uses,  upon  making 
a  just  compensation  therefor,  the  Legislature  possesses  the  power  to  levy 
an  assessment  upon  lots  adjacent  to  a  street,  to  pay  for  improvements 
made  on  the  street,  the  assessment  cannot  exceed  the  benefit  conferred 
on  the  lot  or  its  owner  by  the  improvement,  and  can  be  enforced  only 
by  proceedings  to  subject  the  lot  to  a  sale  on  discharge  of  the  lien. 
Creighton  v.  Manson,  27  Cal.  613. 

10.  Certificate  of  Record. — When  the  assessment,  diagram  and 
warrant  and  sworn  return  of  demand  of  payment  for  a  street  improve- 
ment in  San  Francisco  are  recorded  in  the  office  of  the  Superintendent 
of  Streets,  certificate  of  their  recording  should  be  attached  to  the  same, 
signed  by  the  Superintendent.     Without  such  certificate  the  record  is 


FOR    STREET   ASSESSMENT.  547 

valueless.  Whether  such  certificate  should  be  affixed  to  the  separate 
record  of  the  assessment,  diagram  and  warrant,  not  decided,  Himmel- 
man  v.  Danos,  35  Cal.  441. 

11.  City,   Liability  of.— The    liability   of  the   City  for  street 
improvements  is  limited  to  the  expenses  of  improving  the  crossing.  The 
remainder  is  to  be  paid  by  the  property  fronting  on  the  streets.     The 
City  contracting  as  to  the  latter  must  be  regarded  as  the  mere  agent  or 
trustee,  and  is  therefore  not  primarily  liable.     (Lucas  v.  San  Francisco, 
7  Cal.  443;)   this  decision  is  under  the  old  laws  not  now  in  force. 
Where  the    City   has   discharged   the   assessments    by  receiving  in 
payment    thereof   outstanding    warrants,    it    is    primarily    liable    to 
plaintiff  as  for  moneys  received  to  his  use,  even  on  the  theory  that  k 
acted  simply  as  the  agent  of  the  plaintiff  in  collectfng  assessments.    (Ar- 
genti  v.  San  Francisco,   16  Cal.  255.)    The  City  would  not  be  liable 
independent  of  the  contract  made  by  the  acceptance  of  the  proposals  of 
the  contract.     A  municipal  corporation  can  only  act  in  the  cases  and 
in  the  modes  prescribed  by  its  charter,  for  street  improvements  of  a 
local  nature.     Express  contracts  authorized  by  ordinance  are  necessary 
to  create  a  liability.      Implied  contracts  have  no  application  to  cases 
of  this  character.     (Id.)      When  the  law  compels  a  corporation  to  give 
out  a  contract  for  grading  a  street  to  the  lowest  bidder,  it  takes  away 
from  the  corporation  the  responsibility  arising  from  the  acts  of  the  per- 
son taking  the  contract.      (James  v.  San  Francisco,  6  Cal.  528.)      The 
act  known  as  the  Consolidation  Act,  passed  in  1856,  released  the  City  and 
County  of  San  Francisco  from  all  liabilities  for  damages  for  injuries  sus- 
tained by  any  person  on  its  graded  streets  or  public  highways,  in  conse- 
quence of  said  streets  or  highways  being  out  of  repair.     Parsons  v.  San 
Francisco,  23  Cal.  462. 

12.  Complaint,   Requisites   of. — In  actions  to  recover  street 
assessments  for  street  improvements,  a  strict  compliance  with  the  pro- 
visions of  law  authorizing  them  must  be  shown  to  sustain  a  recovery. 
(Haskell  v.  Bartlett,  34  Cal.  281.)   A  complaint  to  recover  the  amount 
assessed  on  a  lot  in  the  City  of  San  Francisco,  for  an  improvement  of 
the  street  on  which  the  lot  fronts,  should  show,  either  by  general  or 
special  averments,  a  compliance  by  the  Board  of  Supervisors  with  all 
the  steps  prescribed  by  law  to  confer  jurisdiction  on  the  Board.     (Him- 
melman   v.    Danos,    35    Cal.  441;  Taylor  v.   Donner,  31    Cal.  480.) 
When  the  complaint  does  not  allege  the  several  steps  to  be  pursued, 
required  by  the  statute  concerning  street  improvements,  it  is  fatally  de- 
fective.    (Himmelman  v.  Danos,  35  Cal.  441;  Nicholson  Pavement 


548  FORMS    OF    COMPLAINTS. 

Co.  v.  Caduc,  April  T.,  1868.)  The  various  acts  prescribed  by  the 
statute  must,  in  all  essential  particulars,  be  strictly  performed.  Smith 
v.  Davis,  30  Cal.  536. 

13.  Constitutionality   of  Assessments. — The    Constitution 
does  not  prohibit  the  Legislature,  or  municipal  authorities  acting  under 
authority  of  law,  from  imposing  assessments  upon  lots  in  a  city  fronting 
on  a  street,  to  defray  the  expenses  of  improvements  of  the  street  in  the 
nature  of  grading  and  planking.     (Emery  v.  San  Francisco  Gas  Co., 
28   Cal.   345.)     Section  13,  Art.  n,  of  the  Constitution,  provides  for 
equality  and  uniformity  of  taxation  upon  property,  but  applies  only  to 

«  that  charge  or  imposition  upon  property  which  it  is  necessary  to  levy  to 
raise  funds  to  defray  the  expenses  of  the  government  of  the  State,  or 
of  some  county  or  town.  It  has  no  reference  to  special  assessments 
for  local  improvements,  by  which  individual  parties  are  chiefly  bene- 
fited in  the  improvement  of  their  property,  and  in  which  the  public 
is  only  to  a  limited  extent  interested.  (Burnett  v.  Mayor  of  Sac- 
ramento, 12  Cal.  76.)  The  Act  of  1862,  making  the  owner  of  a  lot 
fronting  on  a  public  street  in  San  Francisco  personally  liable  to  a  con- 
tractor for  an  assessment  on  the  lot  for  improvement  on  street  in  front 
of  the  lot,  and  giving  the  contractor  also  a  lien  on  the  lot  for  the  same, 
is  not  unconstitutional.  Walsh  v.  Matthews,  29  Cal.  123. 

14.  Construction  of  Statutes. — The   evident    policy  of    the 
general  law  upon  the  subject  of  street  improvements  in  San  Francisco, 
as  passed  in  1862,  and  amended  in  1863,  (Stats.  1862,  p.  391;  1863, 
p.  525,)  is  to  secure  and  gptect  the  persons  who  are  made  to  pay  the 
cost  of  improvement  from  official  mismanagement  and  wanton  or  reck- 
less exercise  of  power,  by  advising  them  of  what  is  proposed  to  be  done, 
by  enabling  them  to  do  the  work  themselves  if  they  do  so  elect,  and 
especially  by  securing  the  performance  of  the  work  by  responsible  per- 
sons and  upon  the  lowest  terms.     This  policy  cannot  be  defeated  by 
the   Board  of  Supervisors,  by  setting  aside  the  measures  which  have 
been   provided   for   its   enforcement.     (Nicholson   Pavement   Co.   v. 
Painter,  35  Cal.  699.)     That  the  provisions  of  the  charter  authorizing 
the  improvement  in  the  mode  and  manner  of  the  assessment  is  not  in 
conflict  with  the  thirteenth  section  of  Art.   1 1   of  the  Constitution  of 
this  State,  see  (Burnett  v.  Mayor  of  Sacramento,  12  Cal.  76.)     A  legisla- 
tive act  by  which  a  city  is  incorporated,  is  a  public  act  of  which  courts 
are  bound  to  take  judicial  notice.     People  v.  Potter,  35  Cal.  no. 

15.  Contract — Nature    and   Enforcement. — A  contract  to 


FOR    STREET   ASSESSMENT.  549 

grade  a  street  in  San  Francisco  need  not  follow  the  precise  language 
of  the  statute,  or  contain  a  condition  in  express  terms  "that  the  ma- 
terials used  shall  be  such  as  are  required  by  the  Superintendent  of 
Streets."  If  by  fair  and  reasonable  construction  it  can  be  held  to  con- 
tain such  condition,  the  call  of  the  statute  is  answered.  (Taylor  v. 
Palmer,  31  Cal.  240.)  The  law  of  contracts  is  not  applicable  when 
the  State  or  County  government  is  a  party  in  respect  to  the  mode  or 
measure  of  enforcement.  (Sharp  v.  Contra  Costa  Co.,  34  Cal.  284.) 

16.  Converting  Public   Easement  to   Private  Use. — An 

attempt,  by  the  City  of  San  Francisco,  to  convert  a  public  easement  to 
private  use,  or  to  defeat  the  right  of  way  over  a  public  street,  is  beyond 
the  power  of  a  corporation,  and  the  Legislature  has  no  power  to  inter- 
fere with  the  disposition  of  that  and  premises  upon  which  the  ease- 
ment is  situated  after  title  has  passed  from  the  State.  Wood  v.  San 
Francisco,  4  Cal.  190. 

17.  Correcting  Assessment. — By  the  provisions  of  the  statute 
the  assessment  for  street  improvements,  and  the  warrant  for  the  collec- 
tion of  the  money  from  the  owners  of  the  lots  chargeable  therefor,  are 
required  to  be  put  in  the  hands  of  the  contractor,  who  then  has  fifteen 
days  from  the  date  of  the  warrant  within  which  to  examine  it,  and  if 
found  in  any  respect  to  be  incorrect  or  illegal,  it  is  made  his  duty  to 
apply  to  the  Board  of  Supervisors,  by  appeal,  to  have  it  corrected  and 
made  legal.     (Smith  v.  Cofran,  34   Cal.  310.)     An  assessment  on  a 
lot  in  San  Francisco  for  a  street  improvement,  if  made  to  one  alone 
of  several  joint  owners,  can  be  corrected  •nly  by  an  appeal  to  the 
Board  of  Supervisors.     (Taylors.  Palmer,  31  Cal.  241.)     This  power 
of  correction  conferred  on  the  Board  of  Supervisors  extends  to  a  place 
where  an  assessment  has  been  made  by  the  Superintendents  against  a 
person  not  then  living,  and  not  the  owner  of  the  lot,  or  unknown  own- 
ers, and  was  therefore  illegal  and  void.     (Smith  v.  Cofran,  34   Cal. 
310.)     An  error  in  determining  whether  a  street   contractor  in  San 
Francisco  had  fulfilled  his  contract  is  not  a  jurisdictional  defect  which 
vitiates  an  assessment  levied  on  a  lot  to  pay  for  the  work  specified  in 
the  contract.     (Emery  v.  Bradford,  29  Cal.  75.)     Any  irregularity  or 
informality  in  the  levy  and  assessment  of  street  assessments  may  be 
cured  by  subsequent  legislation. 

18.  Dedication  of  Streets. — Streets   laid   out   running  to   the 
water  continue  on  to  high  water,  if  the  city  front  is  filled  in  or  the  space 


55O  FORMS    OF     COMPLAINTS. 

enlarged  by  accretion  or  otherwise,  and  as  such  are  subject  to  the  free 
enjoyment  of  the  public,  and  exempt  from  execution  against  the  City. 
(Wood  v.  San  Francisco;  4  Cal.  190.)  As  to  dedications  of  streets  in 
the  City  of  San  Francisco,  consult  (Jacobs  v.  Kruger,  191  Cal.  14; 
Kittle  v.  Pfeiffer,  22  Cal.  484;  and  Burr  v.  Dana,  Id.  u;  see,  also, 
Eldridge  v.  Cowell,  4  Cal.  81. 

19.  Demand. — The  statute  requires  the  return  to  state  the  nature 
and  character  of  the  demand  made  by  the  contractor.  Under  this 
requirement,  it  is  incumbent  upon  him,  by  his  return,  to  show  a  demand 
upon  the  person  assessed,  or- a  satisfactoiy  reason  why  it  was  not  done, 
before  resorting  to  the  other  modes  of  making  demand.  (Guerin  v. 
Reese,  33  Cal.  292.)  When  more  than  one  person,  either  by  the  orig- 
inal contract  or  by  assignment  from  the  contractor,  is  interested  in  a 
contract  for  widening  a  street  in  San  Francisco,  the  demand  required 
by  the  statute  for  the  payment  of  the  assessment  on  a  lot  for  improving 
the  street  before  the  lot  can  be  charged  with  a  lien  for  the  same,  is  suf- 
ficient, if  made  by  one  alone  of  the  persons  interested  in  the  contract. 
(Gaffney  v.  Gough,  36  Cal.  104.)  The  complaint  in  an  action  by  a 
contractor  against  a  property  owner  upon  a  contract  for  improving 
streets  in  San  Francisco,  in  pursuance  of  the  provisions  of  the  Consoli- 
dation Act,  need  not  aver  any  special  demand  upon  the  defendant, 
other  than  a  compliance  with  the  forty-ninth  section  of  the  Act. 
(Conlin  v.  Seaman,  22  Cal.  546.)  The  thirteenth  section  of  the 
statute  in  relation  to  street  improvements  in  San  Francisco,  to  the 
effect  that  the  assessment  warrant  and  diagram,  with  the  affidavit  of  de- 
mand and  non-payment,  shall  beprimafaeu  evidence  of  the  defendant'8 
indebtedness,  does  not  establish  a  rule  of  pleading,  but  a  rule  of  evi- 
dence only.  Himmelman  v.  Danos,  35  Cal.  441. 

20.  Demand,  How  Made. — There  are  three  modes  by  which 
demand  may  be  made  by  the  street  contractor  for  street  assessments, 
to  wit:  First,  Of  the  person  assessed;  Second,  Of  his  agents;  and,  Third, 
A  demand  publicly  made  upon  the  premises  assessed.  (Guerin  v.  Reese, 
33  Cal.  292.)  As  to  the  mode  of  making  demand,  the  contractor  must 
be  governed  by  the  statute,  and  the  assessment  diagram,  etc.,  prepared 
and  placed  in  his  hands  by  the  Superintendent  of  Streets.  He  is  not 
required  by  statute  to  seek  an  owner,  or  his  agent,  for  the  purpose  of 
making  demand,  when  the  name  6f  the  owner  is  stated  as  "  unknown." 
In  such  a  case  the  mode  is  by  public  proclamation  on  the  assessed  prem- 
ises. (Himmelman  v.  Reay,  Cal.  Sup.  Ct.,  /ul.  T.,  1869.)  A  demand 


FOR    STREET   ASSESSEENT.  551 

must  always  be  made,  both  where  the  owners  are  known  and  where 
they  are  unknown,  either  personally  or  on  the  lot,  and  no  one  is  a 
party  to  the  assessment  unless  he  be  named'  on  the  lot  as  owner,  or  be 
designated  by  the  word  "  unknown."  Himmelman  v.  Steiner,  CaL  Sup. 
Ci.,  Jul.  T.,  1869. 

21.  Demand,  Object  of. — The  legal  purpose  of  the  demand  is 
to  give  to  the  owner,  as  far  as  practicable,,  actual  notice  of  the  existence 
of  the  lien  created  by  the  assessment  and  resting  upon  his  property,  so 
as  to  enable  him  to  take  the  proper  steps  for  its  discharge.     Guerin  v. 
Reese,  33  Cal.  292. 

22.  Form. — This  is  the  approved  form  now  in  use  in  San  Fran- 
cisco, and  we  insert  it  for  that  reason.      It   may  in  general   be  the 
safest  to  allege  each  act  which  the  different  officers  are  required  by  the 
statute  t»  perform,  but  under  our  system  of  practice  it  seems  hardly  nec- 
essary to  do  so.    Yet,  /would  recommend  this  form  rather  than  experi- 
ment upon  one  apparently  better,  but  upon  which  the  courts  have  not 
passed. 

23.  Frontage,  what    Constitutes. — The  clause  in  the  sixth 
section  of  the  Act  of  1862,  amending  the  Consolidation  Act  relating  to 
San  Fr*ancisco,  allowing  the  owners  of  the  major  part  of  the  frontage  of 
lots  liable  to  be  assessed  for  street  improvements,  to  take  a  contract  at 
the  price  awarded,  without  having  put  in  a  bid,  means,  in  those  cases 
where  a  small  street  terminates  in  a  principal  street,  the  owners  of  the 
major  part  of  the  frontage  on  the  principal  street.     (Cochran  v.  Collins, 
2*9  Cal.  129.)     And  when  the  contract  is  entered  into,  any  part  of  the 
land  fronting  on  the  street  to  be  improved  constitutes  one  lot.    The  con- 
tractor is  entitled  to  have  the  cost  of  the  improvement  made  opposite 
the  lot  assessed  on  the  whole  of  the  same  in  one  assessment,  and  no 
subsequent  change  by  cutting  up  the  lot  can  defeat  that  right.      Dough- 
erty v.  Miller,  36  CaL  83.)     The  lien  of  the  contractor  attaches  to  the 
whole  lot,  into  whosesoever  hands  it  may  go.     (Id.)     Assessment  upon 
the  different  lots  fronting  on  a  street  in  a  city,  in  proportion  to  the  num- 
ber of  feet  frontage  of  each,  for  the  purpose  of  raising  money  to  pay  the 
expenses  of  grading  the  street,  is  an  exercise  of  the  sovereign  right  of 
taxation,  and  not  of  the  power  to  appropriate  private  property  to  public 
use  under  the  right  of  eminent  domain.    Emery  v.  San  Francisco  Gas 
Co.,  28  CaL  345. 

24.  Dollar    Mark. — The    placing   of    the  dollar  mark  at  the 


552  FORMS    OF    COMPLAINTS. 

amount  in  the  footing  of  the  several  assessments  of  the  different  lots  is 
equally  as  significant  and  effectual  as  though  the  dollar  mark  had  been 
placed  at  the  head  of  the  column.  Himmelman  v.  Reay,  Cal.  Sup. 
Cl.Jul.  T.,  1869. 

25.  Duty  of  Contractor. — The  statute  makes  it  the  duty  of  the 
contractor,  if  he  have  any  objection  to  the  assessment  made  by   the 
Superintendent  of  Streets  for  incorrectness  or  illegality  therein,  to  appeal 
to  the  Board  of  Supervisors  for  their  correction;  and  if  he  fails  to  avail 
himself  of  this  means  of  protection  afforded  him  by  law  in  case  the 
assessment  be  incorrect  or  void,  it  is  as  much  his  neglect  as  the  neglect 
of  the  Superintendent  of  Streets,  and  he  cannot  hold  the  latter  respon- 
sible in  damages  for  the  result.     Smiths.  Cofran,  34  Cal.  310. 

26.  Gold  Coin. — A  tax  due  for  an  assessment  for  improving  a  street 
in  Oakland  may  be  assessed  upon  a  gold  basis,  and  collected  fh  gold 
coin.     Beaudry  v.  Valdez,  32  Cal.  269. 

27.  In  Rem. — There  is  no  authority  to  make  an  assessment  strictly 
in  rem,  without  reference  to  owners  either  known  or  unknown;  or  an 
assessment  that  shall  affect  the  interest  of  any  party  unless  designated  in 
the  assessment  by  name,  or  if  unknown,  it  be  expressly  stated.     Him- 
melman v.  Steiner,  Cal.  Sup.  Ct.,  Jul.  T.,  1869;  citing  Taylor  v.  Palmer, 
31  Cal.  240;  Taylor  v.  Donner,  31   Cal.  482;   Smith  v.  Davis,  30  Id. 
538;  Smith  v.  Cofran,  34  Cal.  310. 

28.  Interest. — Street  assessments  draw  twelve  per  cent.    (Laws  of 
1867-8,  p.  363,  §  3.)  A  judgment  for  street  assessments  in  San  Francisco 
draws  interest  from  the  time  of  its  rendition.     (Himmelman  v  Oliver, 
34  Cal.  246.)     Street  assessments  in  San  Francisco  are  not  contracts, 
within  meaning  of  statute  in  relation  to  interest,  nor  by  any  statute  is 
interest  allowable  on  street  warrants. 

29.  Judgment. — A  personal  judgment  cannot  be  rendered  against 
the  owner  of  a  lot  in  San  Francisco  for  a  street  assessment;  the  lot  may 
be  charged  with  the  lien.     Gaffney  v.  Gough,  36  Cal.  104. 

30.  Liability,  -when  it  Attaches. — The  liability  of  owners  of 
property  in  San  Francisco,  for  assessments  made  by  the  city  authorities 
for  repairing  the  streets,  depends  on  the  statute,  and  only  inures  after  the 
steps  required  by  the  statute  have  been  taken.     (Blanchard  v.  Beide- 
man,  12  Cal.  261.)     Unless  all  the  provisions  of  the  statute  prior  to  the 


FOR    STREET    ASSESSMENT.  •        553 

award  of  a  contract  for  a  street  improvement  in  San  Francisco  are  com- 
plied with,  the  defendant  is  not  liable  for  the  assessment.  Himmel- 
man  v.  Danos,  35  Cal.  441. 

31.  Lien.— The  charter  gives  the  contractor  a  direct  lien  upon  the 
adjacent  property  for  his  work,  but  where  the  City  has  collected  this  money 
from  the  property  holders,  it  is  liable  to  the  contractor  therefor,  and  can 

"  be  compelled  to  return  the  same.  The  City  being  the  trustee  of  the  con- 
tractor, and  also  the  agent  of  the  property  holders,  it  follows  that  a 
liability  created  thereby  is  not  a  violation  of  that  portion  of  its  char- 
ter which  limits  the  power  of  the  Corporation  in  contracting  debts. 
(Lucas  v.  San  Francisco,  7  Cal.  463.)  Before  a  lien  can  be  created  on 
the  land  assessed,  the  assessment  diagram  and  warrant  must  be 
recorded,  and  the  record  officially  signed  by  the  Superintendent  of 
Streets.  (Himmelman  v.  Danos,  35  Cal.  441.)  A  statute  creating  a 
lien  upon  a  lot  in  the  City,  to  secure  the  payment  of  an  assessment  lev- 
ied on  the  lot  for  improvements  in  the  street  adjacent,  must  be  strictly 
construed,  and  the  proceedings  authorized  by  the  statute  to  create  and 
enforce  the  lien  must  be  followed  precisely  as  directed,  or  the  whole 
proceeding  will  be  void.  (Id.;  Creighton  v.  Manson,  27  Cal.  613.) 
A  lien  for  a  street  assessment  attaches  to  the  lots  fronting  on  the  im- 
provement, as  they  existed  at  the  time  the  jurisdiction  of  the  Board  of 
Supervisors  over  the  subject  matter  attached  under  the  statute,  and  such 
lien  cannot  be  affected  by  any  subsequent  changes  in  lines  of  the  lots 
or  transfers  of  the  property.  Dougherty  v.  Miller,  36  Cal.  83. 

32.  Lien,  Continuance   of. — Under  the  Act  of  1862  relating 
to  streets  in  San  Francisco,  the  return  by  the  contractor  of  the  warrant 
of  the  Superintendent  of  Streets,  within  the  time  and  in  the  form  pre- 
scribed in  the  eleventh  section  of  said  Act,  is  esential  to  the  continuance 
of  the  contractor's  lien  upon   the   lands,   lots,  and   portions  of  lots, 
assessed  after  the  time  limited  in  said  Act  for  the  contractor  to  make 
said  return.     As  the  contractor  is  not  entitled  to  a  personal  judgment 
against  the  person  assessed,  he  is  bound  to  pursue  the  course  specified 
in  said  Act  for  the  preservation  of  his  lien  upon  the  property  charged 
therewith,  otherwise  he  is  without  remedy  for  the  collection.     Guerin 
v.  Reese,  33  Cal.  292. 

33.  Notice  of  Intention. — Where  under  the  statute  a  notice  of 
intention  to  make  street  improvements,  etc.,  in  San  Francisco,  was 
required  to  be  published  daily  (Sundays  excepted),  in  the  newspaper 


554  FORMS    OF    COMPLAINTS. 

having  the  contract  for  the  city  and  county  printing,  which  paper  is 
required  to  be  printed  and  circulated  in  said  City,  and  where  such 
notice  was  only  printed  in  such  paper  for  eight  out  of  ten  consecutive 
days  (the  remaining  two  days  not  being  Sundays),  but  on  said  two  days 
no  issues  were  made  by  said  paper:  Held,  that  the  notice  by  publica- 
tion was  insufficient  and  void.  (Haskell  v.  Bartlett,  34  Cal.  281.)  As 
to  construction  of  the  charter  of  San  Francisco,  which  provides  that 
when  the  Common  Council  thinks  proper  to  open  and  improve  a  street, 
etc.,  that  notice  shall  be  given,  and  if  no  protest  be  made  as  provided, 
then  the  Council  shall  proceed  with  the  improvement,  see  Lucas  v.  San 
Francisco,  7  Cal.  463. 

34.  Orders  in  the  Nature  of  Judgment .; — An  order  to  improve 
a  public  street,  by  the  Board  of  Supervisors  of  San  Francisco,  after  hav- 
ing acquired  jurisdiction,  is  in  the  nature  of  a  judgment.     Dougherty 
v.  Foley,  32  Cal.  402. 

35.  Owner — Determination  as  to  -who  is,  by  Commis- 
sioners.— The  determination  of  the  commissioners  in  the  matter  of 
widening  Kearny  Street,  in  San  Francisco,  as  to  who  is  the  owner  of  a 
lot  or  a  building  thereon,  and'  entitled  to  the  money  to  be  paid  for 
damages  estimated,  is  not  conclusive,  but  where  the  right  to  the  money 
is  contested,  the  Board  of  Supervisors  should  pay  the  amount  in  the 
office  of  the  County  Clerk,  and  leave  the  contest  between  the  claimants 
to  be  settled  by  the  courts  in  pursuance  of  the  provisions  of  the  statutes. 
Appeal  of  Lefevre,  32  Cal.  565. 

36.  Owner,  Liability  of. — The  liability  of  owners  of  property 
in  San  Francisco,  for  assessments  made  by  the  city  authorities  for  repair- 
ing the  streets,  depends  on  the  statute  and  only  inures  after  the  steps 
required  by  the  statute  have  been  taken.     (Blanchard  v.  Beideman,  12 
Cal.  261.)     And  the  acts  must  be  strictly  performed.     (Smith  v.  Davis, 
30  Cal.   536;    Himmelman  v.  Danos,  35  Cal.  441.)      In   cases   not 
within   this   exception,    the   proceeding   must   be    by   notice   to   the 
owner,  etc.,  of  the  property,  according  to  Section  fifty-six,  as  amended 
by  Section  twelve,  of  the  Act  of  1859.     (Blanchard  v.  Bideman,  18  Cal. 
261.)     The  property  owner  is  for  the  first  time  brought  into  relation 
with  the   proceedings  for  the  improvement  of  the  streets,  when  the 
assessment  is  made.     The  lot  owner  is  not  held  liable  on  the  theory 
that  there  is  a  contract  between  him  and  the  street  contractor.     The 
assessment  is  levied  and  collected  by  virtue  of  the  sovereign  power  o1 


FOR    STREET   ASSESSMENT.  555' 

taxation,  and  its  validity  depends  upon  the  same  general  principles 
applicable  to  taxes  properly  levied  for  ordinary  governmental  purposes. 
(Emery  v.  Bradford,  29  Cal.  75.)  When  an  assessment  is  made  to  a 
person  as  owner,  it  creates  no  liability  against  any  other.  Taylor 
v.  Donner,  31  Cal.  480;  Blatner  v.  Davis,  32  Cal.  328. 

37.  Owners  Known  and  Unknown. — The  validity  of  an 
assessment  depends  upon  its  being  made  on  the  owner,  either  by  name, 
or  by  the  designation  of  "unknown,"  as  provided  by  the  statute. 
(Smith  v.  Davis,  30  Cal.  587;  Taylor  v.  Donner,  31  Cal.  482.)  So, 
when  the  Superintendent,  after  due  inquiry,  entertains  a  rational  doubt  as 
to  the  names  of  the  party  in  whom  the  legal  title  is- vested,  the  assess- 
ment must  be  made  to  owner  "  unknown."  (Smith  v.  Cofran,  34 
Cal.  316.)  So,  also,  when  the  title  is  in  dispute,  or  when  from  any  other 
cause;  it  is  impossible  for  the  Superintendent  to  determine  who  is  the 
owner.  (Taylor  v.  Donner,  31  Cal.  482.)  But  the  assessment  must  be 
made  to  the  owner,  if  known.  (Blatner  v.  Davis,  32  Cal.  328.)  Assess- 
ments for  improvements  of  streets  in  Sacramento  are  required  to  be 
listed  to  the  owner,  if  known;  if  not  known,  to  him  as  "  unknown 
owner."  Mayo  v.  Ah  Lay,  32  Cal.  477. 

33.  Owner,  when  not  Liable. — With  respect  to  an  owner  not 
made  a  party  to  the  assessment,  it  is  no  assessment,  and  this  whether 
no  appeal  be  taken,  the  failure  to  make  the  proper  entry  of  his 
name,  or  of  the  word  "  unknown  "  on  the  assessment,  was  the  neglect 
of  the  Superintendent  of  Streets,  or  in  case  of  such  appeal,  of  the  Board 
of  Supervisors.  In  either  case,  such  owner  and  his  property  are  abso- 
lutely unaffected  by  the  assessment,  and  he  is  under  no  obligation  to 
take  any  steps,  by  appeal  or  otherwise,  to  avoid  incurring  personal 
liability,  or  the  incumbrance  of  his  property,  by  way  of  lien  for  such 
assessment.  Under  the  Consolidation  Act,  the  liability  of  the  real  owner 
is  not  released  or  affected  by  an  erroneous  assessment  of  the  tax  upon 
his  property  to  another  person.  Conlin  v.  Seaman,  22  Cal.  546. 

39.  Personal  Liability. — The  acts  of  the  Legislature  do  not 
create  any  personal  liability  on  the  part  of  the  owners  of  the  lots  for 
such  improvements,  nor  does  the  amendment  of  1862  create  any  per- 
sonal liability  for  work  done  qr  to  be  done  under  contracts  entered  into 
before  its  passage.  (Creighton  v.  Manson,  27  Cal.  613.)  And  the 
Legislature  has  not  the  power  to  charge  persons  residing  on  a  street  with 


556  FORMS    OF    COMPLAINTS. 

the  expenses  of  an  improvement.  (Id.}  And  the  owner  cannot  be 
made  liable  beyond  the  value  of  his  land.  Taylor  v.  Palmer,  31 
Cal.  240. 

40.  Proposals  for  Bids. — Proposals  for  bids  to  make  street 
improvements  in  San  Francisco,  consisting  of  more  than  one  kind  of 
work,  were  made  by  the  Board  of  Supervisors,  and  let  to  R.,  who  was 
the  sole  bidder  therefor,  as  one  job.     One  of  said  kinds  of  work  was  to 
put  down  the  Nicolson  Pavement,  the  exclusive  right  to  construct 
which  in  the  said  city  was  in  the  plaintiff  R.'s  assignee.     Held,  that 
because  this  course  had  the  effect  to  preclude  all  persons  other  than  the 
owner  of  said  patent  right  from  bidding,  and  the  property  owners  from 
taking  the  contract  for  any  portion  of  said  work,  the  contract  as  let  was 
Void.     (Nicolson  Pavement  Co.  v.  Fay,  35  Cal.  695;  Nicolson  Pave- 
ment Co.  v.  Painter,  35  Cal.  699.)     But  it  would  be  otherwise  if  there 
was  nothing  in  the  case  to  preclude  anybody  from  bidding,  or  the 
property  owners  from  taking  the  contract.     See  Beaudry  v.  Valdez,  32 
Cal.  269;  cited  in  Nicolson  Pavement  Co.  v.  Fay,  35  Cal.  695. 

41.  Protest. — Where    the   charter   of    the1  City   of  Sacramento 
authorized  the   Common   Council   to   levy  a  special   assessment  for 
grading  and  improving  the  streets  of  the  City,  and  provided  that  when 
the  Council  thought  it  expedient  to  open,  alter,  or  improve  any  street, 
they  should  give  notice,  etc.,  and  if  one  third  of  all  the  owners  in  value 
of  the  adjacent  property  protest  against   the   proposed   improvement 
within  ten  days  after  the  last  publication,  it  shall  not  be  made;  and  a 
protest  was  presented  more  than  ten  days  after  the  last  publication  of 
such  notice :  Held,  that  such  protest  was  not  presented  in  time,  and  was 
therefore  ineffectual;  and,  further,  that  it  must  appear  that  one  third  of 
the  owners  in  value  of  the  adjacent  property  united  in  it.     Burnett  v. 
Mayor  of  Sacramento,  12  Cal.  76. 

42.  Publication. — To  constitute  a  publication  in  a  city  paper, 
it  must  appear  that  that  paper  is  both  published  and  circulated  in  the 
City,  the  former  alone  being  insufficient.      (Haskell  v.  Bartlett,   34 
Cal.  281.)     Where  such  a  daily  paper,  having  the  contract  for  said 
City  and  County  printing,  issued  daily  two  editions,  to  wit:  a  morning 
edition  which  was  circulated  in  said  City  and  County,  and  an  evening 
edition  which  was  circulated  in  the  country  only:  Held,  that  the  publi- 
cation of  notice  of  street  improvements  in  said  City  in  the  evening  edi- 
tion only  was  insufficient.     (Haskell  v.  Bartlett,  34  Cal.  281.)   Sundays 


FOR    STREET    ASSESSMENT.  557 

are  included  in  the  count  of  ten  days,  which  a  resolution  of  the  Board 
of  Supervisors  of  San  Francisco,  declaratory  of  an  intention  to  perform 
work  on  streets,  is  required  to  be  published.  Taylor  v.  Palmer,  31 
Cal.  240. 

43.  Ratification  by  City. — So  far  as  the  lot  owner  is  concerned, 
the  City  of  San  Francisco  cannot  by  its  act  ratify  proceedings  taken  to 
grade  a  street,  and  impose  an  assessment  on  a  lot  for  the  same,  so  as 
to  make  it  valid  when  it  was  invalid  in  the  first  instance.     If  the 
power  to  ratify  exists,  it  is  in  the  Legislature.     Menser  v.  Risdon,  36 
Cal.  239. 

44.  Re-Advertisement  for  Bids. — Under  the  statute  regulat- 
ing street  improvements  in  San  Francisco,  the  Board  of  Supervisois 
have  the  power  to  re-advertise  for  bids,  where  a  contractor  has  failed  to 
perform  the  work,  without  repeating    the  steps  necessary  to  obtain 
jurisdiction.     (Himmelman  v.  Oliver,  34  Cal.  246.)     After  the  Board 
of  Supervisors  of  San  Francisco  have  taken  steps  to  acquire  jurisdiction, 
and  have  ordered  a  public  street  to  be  improved,  and   have  let  the 
contract,  if  the  contractor  fail  to  enter  upon  the  performance  of  his 
work  within  the  time  fixed  by  his  contract,  the  Board  may  re-advertise 
for  bids  and  re-let  the  contract,  without  taking  steps  to  acquire  jurisdic- 
tion as  in  the  first  instance.     Daughterly  v.  Foley,  32  Cal.  402. 

» 

45.  Recording    Assessment    Essential. — The    assessment 
diagram  and  warrant  for  improvements  on  a  street  in  San  Francisco 
must  be  recorded,  before  the  demand  of  payment  and  return  of  the 
same  by  affidavit,  or  a  failure  to  pay  the  assessment,  confers  any  right  of 
action  on  the  contract.     Himmelman  v.  Danos,  35  Cal.  441. 

46.  Re-Letting  Contract. — When,  the  contractor  fails  to  perform 
the  work,  and  it  becomes  necessary  or  expedient  to  re-let  the  job,  the 
same  course  must  be  pursued  in  re-letting  which  is  prescribed  in  the 
first  instance  by  the  sixth  section  of  the  statute  in  relation  to  improve- 
ment of  streets  in  San  Francisco.     (Meuser  v.  Risdon,  36  Cal.  239.) 
Each  proceeding,  whether  in  relation  to  the  first  contract  or  a  re-let- 
ting, is  a  separate  and  independent  proceeding,  and  the  clerk  of  the 
Board,  as  such,  has  no  power  to  give  the  notice  inviting  the  proposals 
for  the  work  on  such  re-letting.     And  the  Board  cannot  delegate  its 
functions  for  this  purpose.     Id. 


FORMS    OF    COMPLAINTS. 

47.  Repeal,  Effect  of.— The  plaintiff,    in    November,    1860, 
entered  into  a  contract  for  the  improvement  of  streets  in  San  Francisco 
under  the  law  of  1859,  which  provided  that  for  payment  an  assessment 
should  be  levied  on  the  adjacent  lots  in  proportion  to  their  prospective 
values.     Before  the  completion  of  the  work,  the  Amendatory  Act  of 
1 86 1  was  passed,  providing  for  an  assessment  in  payment  of  such  con- 
tracts according  to  the  street  frontage  of  each  lot.     Held,  that  the  provi- 
sions of  the  la^  of  1859,  respecting  the  mode  of  assessment,  was  part 
of  the  contract,  and  that  the  assessment,  though  made  after  the  Amend- 
atory Act,  must  be  in  the  mode  prescribed  by  the  old  law.     Houston 
v.  McKenna,  22  Cal.  550. 

48.  Repair  of  Streets. — Where  the  owner  of  a  lot  neglects  for 
three  days  after  notice  from  the  Superintendent  of  Public  Streets  of 
said  City,  to  repair  the  street  in  front  of  his  lot,  the  Superintendent  has 
a  right  to  make  a  contract  for  that  purpose,  and  an  action  will  lie,  in 
the  name  of  the  person  performing  the  work,  against  the  owner  of  the 
lot  adjacent,   for  the  amount.     (Hart  v.  Gaven,  12  Cal.  476.)     For 
repairs  to  the  space  formed  by  the  intersection  of  Battery  and  Market 
Streets,  the  Consolidation  Act  makes  no  provision,  unless  the  expense 
of  such  repairs  could  be  charged  as  local  repairs  under  Section  fifty- 
six,  solely  upon  the  lots  on  the  south  side  of  Market  street,  and  this 
question  is  not  raised.     Bassett  v.  Enright,  19  Cal.  635. 

49.  Resolution  of  Intention. — The  resolution  of  intention,  and 
its  publication,  constitute  the  sole  authority  of  the  Board  to  proceed, 
in  the  statutory  mode,  to  order  said  work  to  be  done,  and  thereby  no 
authority  was  conferred  to  act  upon  any  other  or  different  work;  that 
the  work  designated  in  the  resolution  of  intention  constitutes  one  dis- 
tict  and  entire  subject  matter;  that  the  resolution  of  award  constituted 
the  sole  authority  to  the  Superintendent,  who  acted  ministerially  only 
in  making  a  contract  under,  it,  and  that  the  contract,  by  reason  of  the 
variance  between  its  terms  and  the  resolution  of  award,  was  unauthor- 
ized and  void;  and,  that  a  contract,  duly  authorized  under  said  Act, 
and  executed  according  to  its  requirements,  is  indispensable  to  the 
validity  of  any  assessment  upon  property  to  pay  for  street  improvements. 
(Dougherty  v.  Hitchcock,  35  Cal.  512.)"    A  resolution  of  the  Board  of 
Supervisors  of  San  Francisco,  declaring  an  intention  to   improve   a 
street,  may  include  a  declaration  of  intention  to  both  grade  and  macad- 
amize.    Such  resolution  sufficiently  describes  the  work  to  be  done,  if 
it  declares  that  the  street  will  be  graded  and  macadamized  from  one 


FOR    STREET   ASSESSMENT.  559 

designated  point  to  another.  (Emery  v.  S.  F.  Gas  Co.,  28  Cal.  345.) 
Such  resolution  must  be  presented  to  the  President  of  the  Board 
for  his  approval.  (Thompson  v.  Hoge,  30  Cal.  179;  Creighton  v. 
Manson,  25  Cal.  613.)  A  resolution  of  the  Board  of  Supervisors  of 
San  Francisco,  declaratory  §f  their  intention  to  perform  work  on  a 
street,  need  be  published  only  ten  days,  Sundays  included.  Miles  v. 
McDermott,  31  Cal.  371. 

50.  Space  Formed  by  Junction  of  Two  Streets. — That 
part  of  Section  thirty-seven  of  the  Consolidation  Act  of  San  Francisco, 
which  speaks  of  a  "  space  formed  by  the  junction  of  two  streets  termin- 
ating at  the  same  point,"  does  not  mean  a  space  formed  by  the  inter- 
section of  two  streets,  or  space  formed  where  one  street  intersects  and 
stops  at  another  street  which  continues  on,  as  where  Battery  intersects 
and  stops  at  Market  street,  and  for  repairs  of  such  space  cannot  be 
assessed.     The  latter  part  of  Section  thirty-seven,  not  applying  to  such 
a  case,  and  the  provision  therein  for  assessing  all  the  lots  where  the  lots 
are  not  parallel,  and  hence  the  blocks  are  of  irregular  shape,  also  being 
inapplicable.     Bassett  v.  Enright,  19  Cal.  635. 

51.  Specifications,  Materials. — A  contract  to  macadamize  a 
street  in  San  Francisco,  made  with  the  Superintendent  of  Streets,  binds 
fhe  party  to  use  such  materials  as  are  required  by  the  Superintendent, 
if  it  provides  that  the  work  shall  be  performed  according  to  specifica- 
tions annexed,  and  such  specifications  name  the  material  to  be  used. 
(Emery  v.  San  Francisco  Gas  Co.,  28   Cal.  345.)     If  a  contract  to  do 
work  provides  that  work  shall  be  done  according  to  certain  specifica- 
tions which  are  annexed  to  it,  the  specifications  are  part  of  the  con- 
tract.    Taylor  v.  Palmer,  31  Cal.  240. 

52.  Street  Railroads,  Liability,  etc. — Companies  operating 
street  railroads  in  San  Francisco  are  only  required   to  keep  in  repair 
that  part  of  the  street  lying  between  the  rails  upon  which  the  cars  run, 
and  between  which  the  horses  travel.     They  are  not  required  to  repair 
that  part  of  a  street  lying  between  a  double  track.     Robins  v.  O.  R.R. 
Co.,  32  Cal.  472. 

53.  Streets,  what  are. — Under  the  act  of  1862  relating,  to  the 
City  of  San  Francisco  (Stat.  1862,  391,  §  i),  the  mere  dedication  of 
land  by  the  owner  to  public  use  as  public  streets,  lanes,  alleys,  or  other 
public  places,  converts  it  into  such  for  the  purposes  of  said  Act,  without 
a  formal  acceptance  by  the  Board  of  Supervisors,  who  may  thereafter 


560  FORMS   OF    COMPLAINTS. 

improve  them.  (Stone  v.  Brooks,  35  Cal.  490.)  So,  a  street  or  court 
which  is  a  mere  cul  de  sac,  may  be  dedicated  to  public  use  in  like 
manner  as  a  thoroughfare.  Id. 

54.  Superintendent,  Duty  of.— By  the  legislative  acts  of  1862 
and  1863,  concerning  street  improvements  in  San  Francisco,  it  is  made 
the  duty  of  the  Superintendent  of  Streets  in  the  first  instance  to  make 
the  assessment  for  street  improvements,  and  deliver  the  same  with  a 
warrant  attached  to  the  contractor,  authorizing  him  to  collect  the  money 
from  the  owners  of  the  lots  liable  therefor.      (Smith  v.  Cofran,  34  Cal. 
310;  Himmelman  v.  Cofran,  36  Cal.  411.)      When  an  assessment  is 
void,  it  is  the  duty  of  the  Superintendent  to  make  a  new  one,  without 
regard  to  time.     Himmelman  v.  Cofran,  36  Cal.  411. 

55.  Supervisors,  Jurisdiction  of. — Under  the  provisions  of 
Sections  three  and  eight  of  the  Act  of  1862  (Stat.  1862,  p.  391),  the 
jurisdiction  is  vested  in  the  Board  of  Supervisors  to  determine  whether 
the  whole  or  a  portion,  and  if  a  portion,  what  portion  of  a  street  im- 
provement shall  be  done  as  a  single  improvement.     It  is  necessary  to 
a  proper  execution  of  this  important  power,  and  to  protect  the  interests 
of  property  owners,  that  such  determination  should  be  distinctly  and 
clearly  expressed,  so  as  to  enable  those  interested  to  act  intelligently. 
When  so  expressed,  the  subsequent  proceedings  of  the  Board  must  be 
in  strict  pursuance  thereof,  as  their  sole  authority,  and  if  not  so  pursued 
such  subsequent  proceedings  will  be  void.     (Dougherty  v.  Hitchcock, 
35  Cal.  512.)     They  acquire  jurisdiction  of  the  subject  matter  of  im- 
proving a  street  in  the  City  of  San  Francisco  after  the  expiration  of 
notice  of  intention  to  improve.      (Dougherty  v.  Miller,  36  Cal.tS^.) 
The  obligation  of  a  municipal  corporation  to  keep  the  streets  in  repair 
is  necessarily  suspended  while  they  are  undergoing  such  alterations  as 
for   the   time   made   them   dangerous.       James  v.  San  Francisco,   6 
Cal.  528. 

56.  Supervisors,  Power  of. — The  Board  of  Supervisors  of  the 
City  and  County  of  San  Francisco,  in  respect  to  street  improvements, 
have  whatever  power  is  conferred  by  the  statute,  and  no  other.     The 
power  which  they  possess  must  be  exercised  in  the  mode  prescribed  by 
said  statute,  and  in  no  other.     The  mode  in  such  cases  constitutes  the 
measure  of  the  power.     (Nicolson  Pavement  Co.  v.  Painter,  35  Cal. 
699.)     The  power  of  assessment  cannot  be  exercised  as  an  independ- 
ent or  principal  power  like  that  of  "  taxation,"  but  must  be  used  as  an 


FOR    STREET   ASSESSMENT.  561 

incident  to  the  power  of  organizing  a  municipal  corporation.  (Taylor  v. 
Palmer,  31  Cal.  240.)  Under  the  Act  of  1859,  the  Board  of  "Super- 
visors of  San  Francisco  have  power  to  provide  for  the  grading  of  all 
located  streets,  whether  new  or  old.  and  as  well  of  those  lying  east  of 
Larkin  Street,  as  to  the  west  of  it.  (Houston  v.  McKenna,  22  Cal. 
550. )  Have  power  to  cause  to  be  graded  the  distance  of  several  blocks 
in  one  contract.  Himmelman  v.  Steiner,  Oct.  T.,  1868. 

57.  Supervisors'  Powers  Restricted. — The  Board  of  Super- 
visors has  no  power  to  order  a  contract  for  planking,  paving,  piling,  or 
repairing  a  street  which  has  been  once  paved,  piled,  etc.,  except  in  the 
instance  given  in  Section  fifty-three  as  amended  in  Section  ten  of  the 
Act  of  1859.     (Blanchard  v.  Beideman,  18  Cal.  261.)    They  have  no 
power  in  making  street  improvements,  so  far  as  made  by  said  statutes 
of  1862  and  1863,  to  do  any  kind  of  work  which,  for  any  cause,  can- 
not be  let  or  contracted  for  in  the  mode  prescribed  in  said  statutes,  or 
which  the  owners  of  the  frontage  are  legally  prohibited  from  perform- 
ing.    (Nicholson  Pavement  Co.  v.  Painter,  35  Cal.  699.)     Whatever 
power  said  Board  of   Supervisors  has   in  relation  to  the   Nicholson 
Pavement,  is  derived  from  the  statute  relating  thereto  (Stats.  1865-6, 
p.  720),  under  which  the  power  can  be  exercised  only  upon  the  peti- 
tion therefor  of  a  majority  of  the  owners,  or  their  agents,  in  frontage,  and 
upon  the  condition  that  the  pavement  shall  not  cost  to  exceed  twenty- 
eight  cents  in  coin  per  square  foot.     Where  the  Board  advertised  for 
proposals,  and  awarded  a  contract  for  the  construction  of  said  pavement 
in  said  City,  without  having  received  said  petition,  the  contract  was 
void.     (Nicholson  Pavement  Co.  v.  Painter,  35  Cal.  699.)     Where  said 
Board,  while  assuming  to  act  under  said  Statutes  of  1862  and  1863, 
advertised  for  proposals  to  put  down  on  a  street  in  said  City  the  Nichol- 
son Pavement,  which  had  been  patented  under  the  laws  of  the  United 
States,  and  awarded  a  contract  therefor  to  R.,  who  owned  the  exclusive 
right  to  put  down  said  pavement  in  said  City,  and  who  alone  put  in  a 
bid  for  said  contract;  the  Board  exceeded  its  authority,  and  the  contract 
was  void.     Nicholson  Pavement  Co.  v.  Painter,  35  Cal.  699. 

58.  Taxation  for  Expense. — For  the   expenses  of  such  im- 
provements, it  is  competent  for  the  Legislature  to  provide,  either  by 
general  taxation  upon  the  property  of  all  the  inhabitants  in  the  county 
or  town  in  which  they  are  made,  or  upon  property  adjacent  thereto, 
and    especially    benefited    thereby.      (Burnett    v.    Mayor   of    Sacra- 
mento, 1 2  Cal.  76.)    The  assessment  levied  by  a  municipal  government 

36 


562  FORMS    OF    COMPLAINTS. 

upon  lots  adjacent  to  a  street,  to  pay  for  improvements  made  on  the 
street,*  if  held  to  be  a  tax,  cannot  be  maintained,  because  it  lacks  the 
constitutional  requirement  of  equality  and  uniformity.  Creighton  v. 
Manson,  27  Cal.  613. 

60.  Ten  Days. — Where  the  property  owners  do  not  enter  into 
the  performance  of  the  work  within  ten  days  next  succeeding  publica- 
tion of  the  award,  it  is  competent  for  the  Street  Superintendent  to  enter 
into  contract  with  the  contractor  to  perform  the  work.     Himmelman 
v.  Reay,  Cal.  Sup.  Ct.,  July  T.,  1869. 

61.  Title  to  Lot. — The  title  to  a  lot  upon  which  an  assessment 
for   street  improvements  in  San  Francisco  is  made,  if  put  in  issue  by 
the  pleadings  in  an  action  for  assessment,  may  be  litigated  in  that 
action.     Taylors.  Donner,  31  Cal.  480. 

62.  Time. — Since  the  amendment  to  the  Consolidation  Act  in 
1863,  the  Board  of  Supervisors  of  San  Francisco  may  extend  the  time 
within  which  a  contract  to  perform  work  on  a  street  is  to  be  performed. 
(Taylor  v.  Palmer,  31   Cal.  240.)     The  Superintendent  of  Streets  of 
San  Francisco  has  the  power  to  extend  the  time  for  the  completion  of 
contracts  for  the  improvement  of  streets  made  by  him.     (Houston  v. 
McKenna,   22   Cal.   550;  affirming  Conlin  v.   Seaman,  22    Cal.  546.) 
An  ordinance  for  the  improvement  of  streets  passed  by  the  council 
before  the  expiration  of  the  time  for  the  presentation  of  the  protest,  is 
not  thereby  invalid.     (Burnett  v.  Mayor  of  Sacramento,  12  Cal.  76.) 
The  Legislature  has  the  power  to  ratify  the  resolutions  for  the  exten- 
sion  of  time   for  the  completion  of  the  contract.     Himmelman  v. 
Steiner,  Oct.  T.,  1868. 

63.  Validity  of  Street  Assessment. — To  render  an  assess- 
ment for  street  improvements  valid,   the  various  acts  prescribed  by 
statute  must,  in  all  essential  particulars,  be  strictly  performed.     Among 
other  essential  things,  the  statute  requires  the  assessment  to  show  the 
name  of  the  owner  of  each  lot  or  portion  of  a  lot,  if  known  to  the 
Superintendent;  and  if  unknown,  to  him  the  word  "unknown"  shall 
be  written  opposite  the  number  of  the  lot.     (Himmelman  v.  Janson, 
Oct.  T.,  1867,  not  reported.)     If  an  assessment  is  made  to  a  deceased 
person,  it  is  void.     (Smith  v.  Davis,  30  Cal.  536.)      Where  an  assess- 
ment is  void,  it  is  the  duty  of  the  Superintendent  to  make. a  new  one 
without  regard  to  time.      (Himmelman  v.  Cofran,  36  Cal.  411.)     A 


FOR    STREET   ASSESSMENT.  563 

slight  variance  between  the  resolution  and  the  contract  does  not  vitiate 
the  resolution.     Emery  v.  San  Francisco  Gas  Co.,  28  Cal.  345. 

64.  Warrants. — The   Mayor  and  Controller  of  the   City  and 
County  of  San  Francisco  having  drawn  warrants  on  the  Treasurer 
thereof,  payable  out  of  the  street  assessment  fund,  in  favor  of  plaintiff, 
made  under  contract  with  an  officer  of  said  City  and  County  in  his  offi- 
cial capacity:  Held,  that  plaintiff  cannot  recover  on  the  warrant;  that 
being  made  payable  out  of  a  particular  fund,  they  are  written  bills  of 
exchange,  not  promissory  notes,  and  that  the  Treasurer  must  pay  from 
that   fund  and  no  other.     (Argenti  v.  San  Francisco,  16  Cal.   255.) 
These  warrants  are  ineffectual  for  ant  purpose  except,  perhaps,  as 
evidence  in  an  action  founded  upon  the  consideration  for  which  they 
were  given.     (Martin  v.  San  Francisco,  16  Cal.  285.)     These  warrants, 
with  few  exceptions,  do  not  comply  in  their  form  with  the  requirements 
of  the  City  Charter,  and  would   not  constitute  any  authority  to  the 
Treasurer  to  pay  them,  even  if  funds  were  in  the  treasury  especially 
appropriate  for  their  payment,  because  they  do  not  specify  the  appro- 
priations under  which  they  were  issued,  and  the  date  of  the  ordinances 
making  the  same.     Martina.  San  Francisco,  16  Cal.  285. 

65.  Warrants,  how  Served.^— The  warrant  is  a  process  in  the 
hand  of  the  contractor,  which  he  is  required  to  serve,  and  he  will  be 
held  to  the  same  measure  of  diligence  in  its  service  as  is  an  officer 
holding  legal  process  for  service.     In  making  the  service,  it  is  first  the 
duty  of  a  contractor  to  make  reasonable  effort  to  find  and  serve  the  per- 
son assessed;  failing  in  in  this,  it  is  his  next  duty  to  find  and  serve  the 
agent  of  the  person  assessed;  and  only  when  such  first  and  second 
efforts  have  failed,  is  he  authorized  to  make  service  by  public  demand 
for  the  assessment  upon  the  property  assessed.     Guerin  v.  Reese,  33 
Cal.  292. 


CHAPTER  III. 

TAXES    AND    TAXATION. 

JVo.  538. 

m 

i.  State  and  County  Tax — Known  Owners. 
[STATE  AND  COUNTY.]  f COURT. 


THE  PEOPLE  OF  THE  STATE  OF 

CALIFORNIA, 

against 

DOE  G.  No ,  JOHN  DOE 

and  RICHARD  ROE,  and  the 
REAL  ESTATE  and  IMPROVE- 
MENTS hereinafter  described, 
Defendants. 

The  people  of  the  State  of  California,  by , 

District  Attorney  of  the  County  of ,  complain 

of  Doe    No ,  John  Doe  and  Richard   Roe, 

whose  real  names  are  to  plaintiffs  unknown,  and  who 
are  therefore  sued  by  the  fictitious  names  last  aforesaid, 
and ,  and  also  the  following  described  real  es- 
tate and  improvements,  to  wit:  that  certain  piece  or 
parcel  of  land  situated  in  said  County  and  State,  known 
and  described  as  [describe  real  estate  with  same  partic- 
ularity as  in  action  of  ejectment],  and  all  and  every 
part  and  parcel  of  the  improvements  on  said  land;  and 
for  cause  of  action  say: 

I.  That  between   the  ....  day   of ,  18 .  . , 


FOR  TAXES  AND  TAXATION.  565 

and  the  ....  day  of ,  1 8 . . ,  A.  B.,  in  the  County 

of ,  in  the  State  of ,  then  and  there 

being  County  Assessor  of  said  County,  did  duly  assess 
and  set  down  upon  an  assessment  roll  all  the  property 
real  and  personal  in  said  County  subject  to  taxation; 
that  said  assessment  roll  was  afterwards  submitted  to 
the  Board  of  Equalization  of  said  County,  and  was  by 
said  Board  duly  equalized,  as  provided  by  law;  that  the 

said was  then  and  there  the  owner  of,   and 

that  there  was  duly  assessed  to  him  the  above  described 
real  estate  improvements  upon  real  estate,  certain  per- 
sonal property  [state  kinds],  and  also  certain  dogs, 

to  wit:   

Said     real     estate,    valued     and     so     assessed    at 


Said    improvements,    valued    and    so    assessed   at 
Said  personsal  property,  valued  and  so  assessed  at. 


II.  That  each  of  the  other  persons,  defendants  herein, 
have  and  claim  a  title  to  and  an  interest  in  said  real  estate, 
improvements  on  real  estate  and  personal  property,  and 
are  liable  for  and  in  duty  bound  to  pay  the  taxes  herein 
specified;  that  upon  said  property  there  has  been  duly 
levied  for  the  fiscal  year  A.  D.  1 8 .  . : 

A  State  tax  of $ 

A  County  tax  of $ 

A  tax  on  said  dogs $   

Amounting  in  the  whole  to  $ 

All  of  which  is    due    and   unpaid,  of  which    amount 

dollars  was  duly  assessed  and  levied  against 

the  real  estate  aforesaid,  and dollars  against 

the  improvements  aforesaid. 


566  FORMS   OF    COMPLAINTS. 

Wherefore    said     plaintiffs    pray   judgment    against 

said  persons,  defendants  herein,  for  the  sum  of 

dollars,  and  separate  judgment  against  said  real  estate 

and  improvements  for  the  sum  of dollars,  and 

that  said  real  estate  and  improvements  be  sold  to  satisfy 
such  separate  judgment,  and  that  all  the  interest  and 
claim  of  each  person  aforesaid,  defendants  herein,  and 
all  persons  claiming  any  interest  in  said  real  estate  or 
improvements,  be  forever  barred  and  foreclosed,  and 
that  said  taxes,  and  all  costs  subsequent  to  the  assess- 
metit  of  said  taxes,  and  all  costs  and  expenses  of  this  suit, 
be  paid  in  gold  and  silver  coin  of  the  United  States;  and 
plaintiffs  pray  for  such  other  judgment  as  to  justice 
belongs. 


District  Attorney,  County  of 
[  Verification.} 


No.  539. 

ii.    State  and   County  Tax — Unknown  Owners. 
[STATE  AND  COUNTY.]  [COURT.] 


THE  PEOPLE  OF  THE  STATE  OF 

CALIFORNIA, 

against 

DOE    No ,   JOHN  DOE 

and  RICHARD  ROE,  and  the 
REAL  ESTATE  and  IMPROVE- 
MENTS hereinafter  described, 
Defendants. 


The  people  of  the  State  of  California,  by , 

District  Attorney  of  the  County  of ,  com- 
plain of   Doe  No ,  John  Doe    and    Richard 

Roe,  whose  real  names  are  to  plaintiffs  unknown,  and 


FOR  TAXES  AND  TAXATION".  567 

who  are  therefore  sued  by  the  fictitious  names  last  afore- 
said; and  also  the  following  described  real  estate  and 
improvements,  to  wit:  [describe  real  estate  "with  same 
particularity  as  in  action  of  ejectment],  and  all  and 
every  part  and  parcel  of  the  improvements  on  said  land; 
and  for  cause  of  action  say: 

I.  That  between  the  ....  day  of ,  18 . ., 

and  the  ...  day  of 5>  1 8 .  . ,  in  the  County  of 

,  in  the  State  of ,  A.  B.,  then  and 

there  being  County  Assessor  of  said  County,  did  duly 
assess  and  set  down  upon  an  assessment  roll  all  the 
property,  real  and  personal,  in  said  County  subject  to 
taxation;  that  said  assessment  roll  was  afterwards  sub- 
mitted to  the  Board  of  Equalization  of  said  County,  and 
was  by  said  Board  duly  equalized,  as  provided  by  law; 
that  the  same  Doe  No ,  John  Doe  and  Rich- 
ard Roe  were,  at  the  time  the  said  property  was  so 
assessed,  and  still  are  owners  of  the  land  and  improve- 
ments above  described,  and  were  at  the  time  said  assess- 
ment was  made,  absent  therefrom  and  from  the  said 
County,  and  were  during  all  the  time  aforesaid  and  still 
are  liable  for  and  in  duty  bound  to  pay  the  taxes  herein 
specified;  that  the  names  of  the  owners  of  the  said 
land  and  improvements,  and  the  names  of  the  defendants 
last  aforesaid  were,  during  all  the  time  aforesaid,  and 
still  are  unknown  to  the  said  Assessor,  and  unknown 
to  the  said  plaintiffs,  and  the  above  described  lands  and 
improvements  were  so  assessed  at  the  time  and  place 
aforesaid,  in  the  manner  provided  by  law,  to  "  unknown 
owners,"  to  wit: 

Said     real     estate,    valued     and     so     assessed    at 


Said    improvements,    valued    and    so    assessed    at 


568  'FORMS  OF   COMPLAINTS. 

II.  That  each  of  the  persons,  defendants  herein,  have 
and  claim  a  title  to  and  interest  in  the  said  real  estate, 
improvements  on  real  estate  and  personal  property,  and 
are  liable  for  and  in  duty  bound  to  pay  the  taxes  herein 
specified;  that  upon  said  property  there  has  been  duly 
levied  for  the  fiscal  year  A.  D.  1 8 .  . : 

A  State  tax  of $  

A  County  tax  of $ 

Amounting  in  the  whole  to  $   

All  of  which  is  due  and  unpaid ;    of   which    amount 

dollars  was  duly  assessed  and  levied  against 

the  real  estate  aforesaid,  and dollars  against 

the  improvements  aforesaid. 

Wherefore  said  plaintiffs  pray  judgment  against  said 

persons,  defendents    herein,  for    the  sum  of 

dollars,  and  separate  judgment  against  said  real  estate 

and  improvements  for  the  sum  of dollars,  and 

that  said  real  estate  and  imprqvements  be  sold  to  satisfy 
such  separate  judgment,  and  that  all  the  interest  and 
claim  of  each  person  aforesaid,  defendants  herein,  and 
all  persons  claiming  any  interest  in  said  real  estate  or 
improvements  be  forever  barred  and  foreclosed;  and 
that  said  taxes,  and  all  costs  subsequent  to  the  assess- 
ment of  said  taxes,  and  all  costs  and  expenses  of  this 
suit,  be  paid  in  gold  and  silver  coin  of  the  United  States; 
and  plaintiffs  pray  for  such  other  judgment  as  to  justice 
belongs. 


District  Attorney,  County  of , 
[  Verification. ] 


NOTE. — Under  this  chapter  of  tax  and  tax  suits,  the  inquiry  has  been 
confined  almost  exclusively  to  California  and  Nevada,  for  in  most  of 


FOR  TAXES  AND  TAXATION.  569 

the  other  States  of  the  Union  an  entirely  different  mode  of  collecting 
taxes  is  adopted,  and  even  in  California  this  system  of  tax  suits  is  not 
universal,  for  in  San  Francisco  no  suits  are  brought,  but  sales  for  delin- 
quent taxes  are  made  -directly  from  the  rolls.  The  decisions'  of  our 
Supreme  Court  on  the  various  questions  arising  under  the  revenue  law 
relating  to  assessment  and  collection  of  taxes,  are  numerous  and  exhaust- 
ive; nearly  the  whole  field  of  inquiry  has  been  traversed. 

1.  Action  "will  not  Lie. — An  action  of  debt  for  taxes  will  not 
lie  when  the  predicate  of  the  action  is  a  mere  assessment  upon  prop- 
erty.    Much  depends  upon  the  wording  of  the  act  creating  fhe  tax.    If 
the  act  merely  imposes  a  tax  upon  property,  and  provides  a  particular 
process  for  enforcement,  as  a  sale  of  the  property,  no  suit  can  be 
brought  against  the  person  to  collect  the  tax.     If  a  personal  liability  be 
imposed  for  the  tax,  and  the  debt  is  silent  as  to  the  mode  of  enforce- 
ment, then  an  action  would  lie  for  the  enforcement  of  the  obligation, 
for  the  rule  is  general  that  debt  lies  at  common  law  to  enforce  a  statu- 
tory duty  or  penalty  of  forfeiture.     (State  of  Cal.  v.  Poulterer,  16  Cal. 
514.)     The  provisions  of  the  Constitution  and  revenue  laws  on  the 
subject  of  taxation  are  to  be  understood  as  referring  to  private  property 
and  persons  only,  and  not  to  public  property,  as  to  state,  counties,  towns 
or  municipal  corporations.     (People  v.  Doe,  36  Cal.  220;  citing  Mayo 
v.  Ah  Loy,  32  Cal.  477.)     The  State  cannot  tax  and  sue  itself;  (People 
v.  McCreery,  34  Cal.  433;)  nor  can  it  in  person  or  as  represented  in 
its  local  subordinate  government,  sue  without  its  own  consent.     Sharp 
v.  Contra  Costa  County,  34  Cal.  584;  People  v.  Doe,  36  Cal.  220. 

2.  Assessment. — If  property  is  not  properly  assessed ,  the  assess- 
ment and  tax  levied  thereon  imposes  no  legal  obligation  to  pay  the 
taxes  so  levied  on  the  defendants  or  any  other  person,  and  creates  no 
lien  on  the  real  estate  so  assessed.     (People  v.  Pearis,  Cal.  Sup.  Ct.,  Apr. 
T.,  1869.)     The  words  "assessment"  and  "taxation,"  as  used  in  the 
Constitution  of  this  State,  do  not  have  the  same  signification.     Taylor 
v.  Palmer,  31  Cal.  240. 

3.  Assessment  of,  Valuation  for  Revenue  Purposes. — 

Where  in  making  an  assessment  on  real  estate  for  revenue  purposes,  a 
dispute  arose  between  the  assessor  and  owner  as  to  value,  and  the  asses- 
sor taking  away  the  sworn  statement  of  the  owner,  with  a  blank  left  for 
the  value,  said  he  would  submit  the  dispute  to  the  Board  of  Equaliza- 
tion, and  afterwards  filled  the  blank  in  the  sworn  statement  with  a 
higher  valuation  than  was  admitted  by  the  owner,  and  the  property  was 


57°  FORMS    OF    COMPLAINTS. 

taxed  at  that  valuation,  and  the  owner  never  appeared  before  the  Board 
of  Equalization :  Held,  that  the  assessment,  though  not  entirely  regular, 
was  not  fraudulent,  and  that  a  judgment  for  the  tax  as  assessed  should 
stand.  State  v.  Wright,  4  Nev.  251. 

4.  Assessors'  Duties. — It  is  the  duty  of  assessors  to  assess  all 
property  in  their  respective  districts,  counties,  etc.,  which  comprehends 
all  property,  except  that  which  may  be  denominated  generally,  public 
property.     (People  v.  McCreery,  34  Cal.  432.)     He  must  make  the 
valuation  of  the  property.     (People  v.  S.F.  Savings  Union,  31  Cal.  132.) 
And  it  must  be  made  against  the  owner  when  known.     The  individual 
and  not  the  property  pays  the  tax.     (Kelsey  v.  Abbott,  13  Cal.  609; 
cited  in  Garwood  v.  Hastings,  Cal.  Sup.  Ct.,  Jul.  T.,  1869.)     But  if 
the  assessor  cannot  find  the  person  to  be  taxed,  he  may  nevertheless 
assess  the  property.     (Hart  v.  Plain,  14  Cal.  148.)    That  the  assess- 
ment must  be  made  on  or  before  the  first  Monday  in  May,  is  directory. 
(Id.)     The   assessment  roll   when   completed   and   certified   by  the 
assessor  to  the  Board  of  Supervisors,  is  the  only  evidence  of  his  acts 
and  intentions.     (People  v.  S.F.  Savings  Union.  31  Cal.  132.)    There 
is  no  particular  form  required  for  the  certificate.     (State  v.  W.  U.  Tel. 
Co.,  4  Nev.  338.)     The  making  of  a  certified  copy  by  an  assessor  of  an 
assessment  roll  made  by  another  assessor,  a  previous  year,  is  not  an 
assessment  of  property.     (People  v.  Hastings,  29  Cal.  449.)     Under 
Section  101  of  the  Revenue  Act  of  Nevada,  of  1865  (Statutes  of  1865 
307),  assessors   may   call  for   sworn   statements   of  the  amount  and 
value  of  the  proceeds  of.  mines,  but  they  are  not  bound  by  such  state- 
ments in  making  their  assessments.     State  v.  Kruttschnitt,  4  Nev.  178. 

5.  Auditor's  Duties.— The  County  Board  of  Equalization  being 
authorized  to  equalize  taxes,  if  they  make  an  order  reducing  the  assess- 
ments, however  illegal  it  may  be,  the  County  Auditor  must  be  governed 
by  their  action  until  it  is  set  aside  by  a  court  of  competent  jurisdiction. 
State  v.  Fish,  4  Nev.  216. 

6.  Authentication. — The  record  of  the  assessment  in  the  office 
of  the  Superintendent  of  Streets,  must  be  authenticated  by  the  signature  of 
that  officer,  and  until  signed  there  is  no  assessment,  and  consequently 
no   lien  upon  the   land   for  the   cost  of  the   improvement  created. 
McGlynn  v.  Jones,  Cal.  Sup.  Ct.,Jan.  T.,  1869;    citing   as   authority, 
Himmelman  v.  Danos,  35  Cal.  441. 

7.  Board  of  Equalization. — The  presumption  of  law  is  that  a 


FOR  TAXES  AND  TAXATION.  5/1 

Board  of  Equalization  perform  their  duty  and  correct  any  inequality  in 
the  assessment  of  taxes.  (Guy  v.  Washburn,  23  Cal.  in.)  They  can- 
not add  to  the  valuation  of  property,  with  evidence  authorizing  them  to 
do  so.  (People  v.  Reynolds,  28  Cal.  107.)  They  cannot  make  a  new 
assessment.  Id. 

8.  Burden  of  Proof. — In  a  suit  for  delinquent  taxes,  it  is  suffi- 
cient on  the  part  of  the  State  to  show  a  regular  assessment,  without 
being  required  to  show  a  delinquency.     The  only  defenses  which  can  be 
made  to  resist  a  judgment  are  affirmative  in  their  character,  and  must 
be  specially  pleaded  and  affirmatively  made  out  by  the  defendant. 
State  v.  Western  Union  Telegraph  Co.,  4  Nev.  338. 

9.  Capital  of  Bank. — The   capital  of  a  bank  embraces  all  its 
property,  real  and  personal.     (New  Haven  v.  City  Bank,  31  Conn.  106.) 
Where  the  capital  stock  of  a  bank  is  exempted  from  taxation  by  the 
charter,  its  banking,  house  is  equally  exempt  with  every  other  part  of  its 
capital.     New  Haven  v.  City  Bank,  31  Conn.  106. 

10.  Capitation  Tax. — The  revenue  law  imposing  a  capitation 
tax  of  one  dollar  on  all  passengers  carried  out  of  the  State,  by  stage 
companies,  is  not  a  regulation  of  commerce  among  the  States,  nor  a 
tax  on  exports,  and  is  not  in  conflict  with  the  powers  of  the  Federal 
Government.     Ex  parte  Crandall,  i  Nev.  294. 

11.  Chose  in  Action. — Chose  in  action  follows  the  person  of  those 
having  the  right.     When  the  holder  of  such  right  resides  out  of  the  State 
of  Nevada,  this  State  has  no  jurisdiction  over  the  person  nor  over  the 
thing  proposed  to  be  taxed,  and  cannot  tax  either.     (State  of  Nevada 
v.  Earl,  i  Nev.  394.)     The  State  can  only  tax  choses  in  action  belong- 
ing to  its  own  citizens  or  residents.     Id. 

12.  Claim. — The  term  "claim,"  as  used  in  Section  five  of  the 
Revenue  Act  of  1861,  means  not  only  an  assertion  of  title  to,  but  an 
actual  possession  of  the  land  claimed.     People  v.  Frisbie,  31  Cal.  146. 

13.  "Claim  to,  and  Possession  of." — The  claim  to  and  posses- 
sion of  land,  is  property  liable  to  taxation,  even  if  the  land  belong  to 
the  United  States,  but  such  is  not  a  tax  upon  the  land  itself.     People  v. 
Cohen,  31  Cal.  210;  People  v.  Frisbie,  31  Cal.  146. 

14.  Common  Carriers. — Common  carriers  of  gold  dust  com- 
pelled to  pay  the  license  tax  fixed  by  74th  and  75th  sections  of  the 


572  FORMS   OF    COMPLAINTS. 

Revenue  Act  of  1861,  pp.  442,  443-      People  v.  Wells  Fargo  &  Co., 
19  Cal.  293. 

15.  Complaint. — A  complaint  under  the  Act  of  May  17,  1861, 
which  avers  that  the  tax  "  was  levied  upon  and  assessed  against  per- 
sonal property,"  contains  no  cause  of  action.     The  complaint  should 
not  only  aver  that  the  tax  was  levied  upon  and  assessed  against  per- 
sonal property,  but  also  the  kind  or  kinds  of  personal  property.   (People 
v.  Holladay,  25   Cal.   300.)     The  complaint  must  aver  the  failure  of 
the  tax  collector  to  collect  the  delinquent  tax,  by  reason  of  his  inability 
to  find,  seize,  or  sell  the  property  belonging  to  the  delinquent.    (People 
v.  Pico,  24  Cal.  595.)    The  Acts  of  1861  and  1862  prescribe  the  same 
form  of  complaint,  but  the  former  contemplates  a  mere  money  judg- 
ment, while  the  Act  of  1862  authorizes  a  judgment  foreclosing  a  lien 
for  taxes  with  an  order  of  sale,  etc.,  so  that  the  character  of  the  action, 
whether  it  is  a  case  in  equity  or  at  law,  will  be  determined  by  the 
prayer  of  the  complaint.     (People  v.  Mier,  24  Cal.'6i.)    The  statute 
does  not  require  the  assessed  value  of  the  property  to  be  alleged  in  the 
complaint.     (People  v.  Hastings,   26  Cal.  668.)      A  complaint  in  a 
tax  suit  which  shows  only  that  the  property  taxed  was  assessed  as  the 
estate  of  R.  deceased,  and  that  the  defendants  at  the  time  of  the  assess- 
ment owned  and  possessed  it,  does  not  state  facts  sufficient  to  constitute 
a  oause  of  action,  because  not  showing  that  it  was  assessed  to  any 
particular  party  whose  duty  it  was  to  pay  the  taxes,  or  that  it  was  made 
to  unknown  owners.     (People  &.  De  Carrillo,  35  Cal.  37.)     As  there 
appears  to  be  under  the  Act  of  1860,  no  authority  for  levying  a  con- 
tingent and  building  tax,  if  the  complaint  sets  forth  these  items,    it 
shows  no  cause  of  action.     (People  v.  Hagar,  19  Cal.  462.)    A  tax 
payer  on  the  proceeds  of  mines  may  complain  of  inequality  of  assess- 
ment upon  him,  at  any  time  before  the  taxes  are  collected  or  sued  for. 
State  v.  Manhattan  Company,  4  Nev.  318. 

16.  Construction  of  Revenue   Law. — The  requirement  of 
Section  ten  of  the  Revenue  Act  of  1865,  "that  the  value  of  the  pro- 
ceeds of  monies,  shall   be  ascertained  as  provided  in  this  Act,"  has 
reference  to  the  mode  of  allowance  for  the  cost  of  working.     (State  v. 
Kruttschmitt,  4  Nev.  178.)     The  revenue  laws  are  unconstitutional  so 
far  as  they  exempt  private  property  from  location,  and  all  parts  thereof 
relating  to  such  exemption  must  be  disregarded.     (People  v.  Gerke,  35 
Cal.  677.)     Act  imposing  taxes  conforms  to  and  is  not  in  conflict  with 
constitutional  restrictions;  it  is  binding  and  obligatory,  and  beyond  the 


FOR  TAXES  AND  TAXATION.  573 

control  of  the  judicial  department  of  the  State  Government.  Beals 
v.  Amador  County,  5  CaL  624. 

17.  County  Taxes — By  Whom  Levied. — The  amount  of 
taxes  for  county  purposes  must  be  fixed  and  levied  by  the  Board  of 
County  Commissioners,  and  without  their  proper  action  no  county  tax 
can  be  collected.     State  v.  Manhattan  Company,  4  Nev.  318. 

18.  Debt. — Standing  alone,  the  word  "  debt "  is  as  applicable  to  a 
sum  of  money  which  has  been  promised  at  a  future  day,  as  to  a  sum 
now  due  and  payable.     (People  v.  Arguello,  CaL  Sup.  Ct.,  Jul.  T., 
1869.)     Debts  are  declared  to  be  personal  property  for  the  purpose 
of  taxation,  whether  it  be  debts  over  due  or  under  due.     People  v. 
Arguello,  CaL  Sup.  Ct.,Jul.  T.,  1869. 

19.  Default. — A  tax  payer  is  not  in  default  until  he  has  an  op- 
portunity to  pay  the  taxes  assessed  against  him,  so  that  if  there  is  no 
person  authorized  to  receive  the  taxes  until  the  delinquent  list  goes  into 
the  hands  of  the  District  Attorney,  the  tax  payer  on  receiving  notice  of 
that  fact,  ought  to  be  allowed  to  pay  the  tax  without  any  penalty  being 
imposed.     State  v.  Western  Union  Telegraph  Company,  4  Nev.  338. 

20.  Demand  for  Sworn  Statement  not  Indispensable. — An 

assessment  for  taxes  by  the  Assessor  is  not  vitiated  by  the  fact  that  he 
omitted  to  demand  a  sworn  statement.  State  v.  Western  Union  Tele- 
graph Company,  4  Nev.  338. 

21.  Description  in  Assessment. — No  action  can  be  main- 
tained under  the  Act  of  May  iyth,  1861,  for  a  tax  on  real  estate,  unless 
the  assessment  has  sufficiently  designated   the  property  to  enable  a 
proper  description  of  it  to  be  given  in  the  complaint.     A  description 
of  the  land  assessed,  as  the  unsold  portion  of  eleven  square  leagues  of 
land  known  as  Los  Mokelamos,  is  fatally  defective.    (People  v.  Pico,  20 
CaL  395.)    A  description  of  a  tract  of  land  by  name  is  sufficient.     (Peo- 
ple v.  Leet,  23  CaL  161.)    The  assessment  of  lands  outside  of  a  city 
or  incorporated  town  need  not  describe  the  land  by  metes  and  bounds. 
(High  v.  Shoemaker,  22  CaL  363.)     Improvements  on  real  estate  and 
personal  property  need  only  be  assessed  in  general  terms  and  under  a 
gross  valuation ;  a  specific  description  of  such  property  is  unnecessary. 
(People  v.  Rains,  23  CaL  127.)     The  object  of  a  description  of  prop- 
erty in  an  assessment  roll,  is  to  clearly  identify  the  property  assessed. 
(People  v.  Empire  G.  and  S.  M.  Co.,  33  CaL  171.)     Bonds  on  deposit 


574  FORMS    OF    COMPLAINTS. 

are  sufficiently  described  by  being  designated  "money  and  bonds  de- 
posited as  per  statute."  (People  v.  Home  Ins.  Co.,  29  Cal.  503.)  An 
assessment  of  land  is  not  void  by  reason  of  a  mistake  in  description, 
unless  it  contains  such  a  falsity  in  the  designation  or  description  as 
might  probably  mislead  the  owner.  (Bosworth  v.  Danzien,  25  Cal. 
296.)  A  lumping  assessment  of  personal  property  is  bad.  The  dif- 
ferent classes  should  be  stated.  Falkner  v.  Hunt,  16  Cal.  167. 

22.  Description  of  Property  in  Complaint. — The  Statute 
of  1 86 1,  requiring  real  estate  in  an  action  to  recover  taxes  to  be  described 
in  the  complaint  with  the  same  particularity  as  in  actions  of  ejectment, 
only  applies  to  actions  in  which  the  real  estate  is  made  a  party  defend- 
ant.    (People  v.  Leet,  23  Cal.  161.)    A  description  of  a  tract  of  land 
by  name  is  sufficient.     (/</.)     If  a  complaint  in  an  action  to  recover 
judgment  for  taxes  assessed  on  land  and  improvements  thereon,  de- 
scribes the  land  assessed  by  giving  its  name,  and  metes  and  bounds, 
less  certain  lots  sold  out  of  the  same,  without  giving  the  location  and 
boundaries  of  the  lots  sold,  the  complaint  is  fatally  defective.     (Peo- 
ple v.  Mariposa  Co.,  31   Cal.  196.)      In  a  suit  for  taxes,  evidence  is 
admissible  to  prove  a  description  of  the  property  taxed  more  particular 
than  that  used  in  the  assessment  roll,  if  there  is  no  contradiction  in  the 
two  descriptions,  and  the  complaint  gives  the  description  used  on  the 
trial.    State  v.  Real  del  Monte  Co.,  i  Nev.  523.  • 

23.  Dollar  Mark. — Figures  placed  opposite  the  town  lots  in  an 
assessment  roll,  without  any  statement  whether  they  stand  for  cents, 
dollars,  or  eagles,  do  not  fix  any  valuation,  and  the  assessment  is  defect- 
ive.     (Hurlbutt  v.  Butenop,  27  Cal.  50;  Braly  v.  Seaman,  30  Cal.  610; 
People  v.  S.  F.  Savings  Union,  31  Cal.  132.)  Astowhat  is  sufficient,  see 
(People  v.  Empire  G.  and  S.  M.  Co.,  33  Cal.  171 ;  People  v.  McCreery, 
34  Cal.  432.)    A  dollar  mark  at  the  footing  of  the  several  assessments 
of  the  different  lots  is  as  effectual  as  if  placed  at  the  head  of  the  column. 
Himmelmann  v.  Reay,  Cal.  Sup.  Ci.,Jul.  T.,  1869. 

24.  Domicile. — One  may  be  a  resident  of  one  state,  and  taxed 
as  such,  when  his  domicile  is  in  another.     Board  of  Supervisors  v. 
Davenport,  40  ///.  197. 

25.  Easements. — A  street    railroad    company's  easements   of 
running  cars  over  tracks  in  a  street,  may  be  assessed  as  real   property 
benefited  by  the  widening  of  said  street,  for  the  expense  of  such  widen- 


FOR  TAXES  AND  TAXATION.  575 

ing.     Appeal   of  North   Beach  and   Miss.   R.R.   Co.,    32  Cal.  499; 
Chicago  v.  Baer,  41  ///.  306. 

26.  Equalization. — As  to  changing  the  assessed  value  of  prop- 
erty by  the  Board  of  Equalization,  under  the  Revenue  Act  of  1861, 
consult  Patten  v.  Green,  13  Cal.  325;   Peopled.  Reynolds,   28   Cal. 
107;  Cent.  P.  R.R.  Co.  v.  Placer  Co.,  32  Cal.  582;  Guy  v.  Washburn, 
23  Cal.  in;  see,  also,  Gen.  Laws  of  Cal.  ^[6,172,  6,305;  also  Laws 
of  Cal.  1865-6,  p.  5;  and  People  v.  McCreary,  34  Cal.  432. 

27.  Flume. — A  flume  constructed  by  a  mining  company  along 
the  bank  of  a  river,  leading  to  the  claims  of  the  company  in  the  bed  of 
the  river,  is  taxable.     Hart  v.  Plum,  14  Cal.  148. 

28.  Foreign  Corporation. — The  place  for  assessment  of  a  foreign 
corporation  doing  business  in  this  State,  for  the  purposes  of  taxation,  is 
where  the  principal  business  is  transacted.      British  etc.  Ins.  Co.  v. 
Commissioners  of  Taxes,  31  N.Y.  32. 

29.  Growing  Crops. — Growing  crops  are  private  property,  and 
are  subject  to  taxation,  the  provision  of  said  statute  exempting  them 
notwithstanding.     People  v.  Gerke,  35  Cal.-  677. 

30.  House  on  Boundary  Line. — Where  a  taxpayer's  house  lies 
on  the  boundary  line,  and  partly  in  two  towns,  it  seems  that  he  is  prop- 
erly taxable  in  the  town  where  the  most  necessary  and  indispensable 
part  of  the  house  is  situated,  in  the  absence  of  other  more  controlling 
facts.     Judkins  v.  Reed,  48  Maine,  386. 

31.  Impost   Duties. — There  is  no  restriction  upon  the  taxing 
power  of  a  state,  except  the  laying  of  impost  or  duties  on  imports  or 
exports,  and  if  in  the  exercise  of  this  power  foreign  commerce  or  com- 
merce among  the  states  be  incidentally  affected,  the  state  authority  must 
nevertheless  be  maintained.       Ex  park  Crandall,  Habeas  Corpus,  i 
Nev.  294. 

32.  Improvements    on  Public    Lands. — Improvements  on 
public  lands  of  the  United  States,  whether  owned  by  a  pre-emptioner 
or  one  occupying  public  lands  without  license,  are  liable  to  assessment 
and  taxation,  if  made  so  by  the  revenue  laws  of  a  state.     (People^. 
Shearer,  30  Cal.  645.)     A  local  tax  for  the  purpose  of  internal  improve- 
ments may  be  imposed,  and  the  local  authorities  may  be  empowered 


576  FORMS   OF    COMPLAINTS. 

to  impose  such  tax.     Pattison  v.  Board  of  Supervisors  of  Yuba  Co.,  1 3 
Cal.  175. 

33.  Inability  to  Find,  Seize,  and  Sell. — In  an  action  brought 
by  the  People  to  recover  judgment  for  delinquent  taxes  assessed  during 
three   years  preceding  March,   ist,    1861,  the  complaint  is  defective 

.  if  it  does  not  aver  that  the  tax  collector  has  failed  to  collect  the  taxes 
in  question,  by  reason  of  his  inability  to  find,  seize,  and  sell  the  property 
belonging  to  the  delinquent.  People  v.  Holladay,  25  Cal.  300. 

34.  Judgment. — A  judgment  for  a  debt,  and  foreclosing  a  mort- 
gage given  to  secure  it,  is  subject  to  taxation  only  where  the  owner  of 
the  judgment  resides,  and  then  the  money  due  upon  it  is  only  taxable. 
(People  v.  Eastman,  25  Cal.  60 1.)      So  of  choses  in  action,  and  prop- 
erty of  an  intangible  character,  such  as  debts  and  the  like.     (People  v. 
Park,  23  Cal.  138.)      A  judgment  foreclosing  a  mortgage,  is  taxable 
only  in  the  county  where  the  mortgagee  lives,  and  not  in  the  county 
where  the   mortgaged   lands   are   situated.      People  v.  Eastman,  23 
Cal.  60 1. 

35.  Jurisdiction. — An  action  brought  under  the  Revenue  Act  of 
1861,  to  recover  judgment  for  unpaid  taxes,  is  not  a  case  in  equity,  but 
an  action  at  law;  and  where  the  amount  is  less  than  three  hundred 
dollars,  the  District  Court  has  no  jurisdiction.      (People  v.  Meir,  24 
Cal.  61;  Bellf.  Crippen,  28  Cal.  327.)     If  the  prayer  of  the  complaint 
is  for  a  money  judgment,  the  District  Court  will  not  have  jurisdiction 
where  the  amount  claimed  is  less  than  three  hundred  dollars;  but  if  the 
prayer  is  for  the  foreclosure  of  a  lien,  order  of  sale,  etc.,  the  District 
Court  has  jurisdiction  regardless  of  the  -amount  claimed.     (People  v. 
Mier,  24  Cal.  61.)     If  the  action  is  brought  under  the  provisions  of  the 
Act  of  May  12,  1862,  it  is  a  case  in  equity,  and  the  District  Court  has 
jurisdiction,  although  the  amount  claimed  is  less  than  three  hundred 
dollars.     Bell  v.  Crippen,  28  Cal.  327. 

36.  Kind    and    Quantity. — If  an  assessment  of  a   tax  made 
during  the  three  years  preceding  March,  1861,  is  defective  in  not  stating 
the  kind  and  quantity  of  property  assessed,  whether  real  or  personal,  or 
if  real,  in  not  giving  its  description,  the  pleader  in  an  action  brought 
to  recover  judgment  for  such  tax,  may,  if  the  same  can  be  ascertained, 
insert  in  his  complaint  the  necessary  averments  as  to  kind  and  quantity, 
or  description.     People  v.  Holladay,  25  Cal.  300. 


FOR  TAXES  AND  TAXATION.  577 

37.  Land  Segregated. — Where  a  claim  to  a  tract  of  land  under  a 
Mexican  grant  somewhere  within  a  certain  larger  tract  was  ascertained, 
and  the  land  segregated  by  a  survey  under  a  decree  of  confirmation  by 
the  U.S.  Supreme  Court,  the  land  became  immediately  taxable.     Pal- 
mer v.  Boling,  8  Cal.  387. 

38.  Lands  Sold  by  the  United  States.— When  land  of  the 
United  States  has  been  paid  for,  and  a  certificate  of  purchase  has  been 
given  to  the  purchaser,  it  is  liable  to  taxation,  although  the  patent  may 
not  have  been  issued.     People  v.  Shearer,  30  Cal.  645. 

39.  Law  of  Tax    Suits. — The  strict  compliance  with  all  the 
the  provisions  of  the  statute  required  to  be  shown  in  cases  where  prop- 
erty is  sold  for  taxes  without  a  judgment,  is  not  applicable  to  cases  of 
suits  for  delinquent  taxes  in  the  District  Courts  where  jurisdiction  has 
once  been  acquired.     State  v.  Western  Union  Telegraph  Company,  4 
Neo.  338. 

40.  Lien  of  Judgment. — The  levy  of  a  tax  creates  a  judgment 
and  lien  on  the  property,  having  the  force  and  effect  of  an  execution. 
(Yuba  Co.  v.  Adams,  7  Cal.  35.)    The  lien  of  the  State  for  state  and 
county  taxes  attaches  on  the  first  day  of  March  of  each  year,  and  con- 
tinues until  the  tax  is  paid.    (Cowell  v.  Washburn,  22  Cal.  519.)    The 
lien  on  land  of  a  tax  assessment  continues  after  the  land  has  been  trans- 
ferred to  another  county,  and  the  tax  collector  of  the  original  county  can 
enforce  the  collection  of  the  tax  by  a  sale.      Moss  v.  Shear,  25  Cal.  38. 

41.  Levy  and  Assessment. — The  averments  in  the  complaint 
in  this  case  as  to  the  levy  and  assessment  are  sufficient,  under  the  Act  of 
1860,  to  put  upon  defendant  the  burden  of  showing  that  it  is  not  liable. 
{See  facts}  People  v.  Seymour,  16  Cal.  332. 

42.  Legislative  Restrictions. — The  only  restriction  imposed 
upon  legislative  discretion  in  the  matter  of  taxation,  by  our  Constitution, 
is  that  it  shall  be  equal  and  uniform,  and  in  proportion  to  the  property 
taxed.     It  affects  only  the  mode  of  taxation,  and  where  the  legislative 
act  conforms  to  this  rule  it  is  binding  and  obligatory.     Beals,  Adminis- 
trator v.  Amador  Co.,  35  Cal.  624;  citing  Blanding  v.  Burr,  13  Cal.  350; 
People  v.  Alameda  Co.,  26  Cal.  641;    Napa  Valley  R.R.  Co.  v.  Napa 
Co.,  30  Cal.  435;  Town  of  Guilfordz*.  Supervisors,  18  Barb.  615;  and 
commenting  on  Beals  v.  Amador  Co.,  28  Cal.  449. 

37 


578  FORMS    OF    COMPLAINTS. 

43.  Local  Laws. — Where  a  special  act  is  passed  by  the  Legisla- 
ture empowering  the  Board  of  Supervisors  of  a  particular  county  or 
counties  to  levy  a  tax  for  special  purposes,  it  does  not  necessarily  repeal 
the  general   act  or  previous  special  acts.      The  repeal  of  acts  is  by 
direct  terms,  or   by  implication.     Repeals  by   implication  are  never 
favored;  on  the  contrary,  if  prior  and  subsequent  legislative  enactments 
may  well  subsist  together,  courts  are  bound  to  uphold  the  former.   Peo- 
ple z>.  Gerke,  5  Cal.  381. 

44.  Mill  Property. — Under  the  statute  which  provides  that  mills 
shall  be  taxable,  the  machinery  contained  in  a  mill  is  taxable  as  part  of 
the  mill,  and  it  is  equally  taxable  here,  although  the  owners  reside  out 
of  the  State,  and  it  makes  no  difference  that  the  machinery  is  personal 
property.     Sprague  v.  Lisbon,  30  Conn,  18. 

45.  Mining  Interests. — The  possession  and  interest  or  the  pos- 
session and  claim  to  lands  for  mining  purposes,  the  title  to  which  land 
is  in  the  United  States,  is  property,  and  as  such  is  taxable  to  the  claim- 
ant.    So  held  in.  (People  v.  Shearer,  30  Cal.  656;  People  v,  Frisbie,  31 
Id.  146;  and  People  v.  Cohen,  31  Cal.  216;)  and  that  such  property 
is  not  exempt  from  taxation,  consult  (People  v.  McCreery,  34  Cal.  433; 
People  v.  Gerke,  35  Cal.  677;  People  v.  Black  Diamond  Coal  M.  Co., 
Cal.  Sup.  <?/.,  Oct.  T.,  1868.)    That  the  Legislature  has  power  to  tax  the 
interest  of  an  occupant  of  a  mining  claim,  see  (State  of  Cal.  v.  Moore, 
12  Cal.  56.)     The  value  of  a  mining  claim,  that  is  the  mine  itself, 
cannot  be  taxed,  but  this  does  not  exempt  everything  near  the  claim 
necessary  to  give  it  value.     Hart  v.  Plum,  14  Cal.  148. 

46.  Miner's  License. — The  employer  and  not  the  partnership 
is  liable  for  a  foreign  miner's  license  tax  of  one  employed  by  him  to 
work  in  a  mine.     Meyer  v.  Larkin,  3  Cal.  403. 

47.  Money    at   Interest  Taxable. — All  *noney   at   interest 
secured  by  mortgage  or  otherwise  is  subject  to  taxation,  without  regard 

*  to  the  situation  of  the  mortgagee,  whether  he  be  solvent  or  otherwise, 
in  debt  or  out  of  debt.     State  v.  First  National  Bank,  4  Nev.  348. 

48.  Money  at  Interest,  -where  Taxed. — A  debt,  as  such, 
has  no  situs,  but  follows  the  person  of  the  creditor;  indeed,  all  personal 
property,  of  whatsoever  character,  is  in  law  presumed  to  follow  the  per- 
son of  the  owner.     In  some  exceptional  cases,  however,  and  for  some 
special  purposes,  the  rule  has  been  varied  by  statute.     In  this  State 


FOR  TAXES  AND  TAXATION.  579 

(California),  visible,  tangible,  personal  property,  is  to  be  taxed  in  the 
county  in  which  it  is  found  at  the  time  of  the  assessment.  (Slat,  of 
Cal.  1861,  p.  423,  §§  14,  15.)  But  "money  at  interest"  cannot  be 
regarded  as  coming  under  this  provision,  and  is  consequently  properly 
assessed  in  the  county  where  the  party  resides.  (People  v.  Whartenby, 
Cal.  Sup.  Ct.,  Oct.T.,  1869.)  The  same  propositions  in  substance, 
(People  v.  Eastman,  25  Cal.  603;  People  v.  Park,  23  Cal.  138;  Faulk- 
ner v.  Hunt,  16  Cal.  171;  People  v.  Holladay,  25  Cal.  300;  People  v. 
Niles,  35  Cal.  282.)  The  lender  of  money  is  not  subject  to  double 
taxation  by  reason  of  the  statutory  provision  requiring  payment  of  .taxes 
on  money  loaned  by  him,  and  on  solvent  debts  due  him  over  his  own 
indebtedness.  People  v.  McCreery,  34  Cal.  432. 

49.  Money  in  County  Treasurer's  Hands. — Money  belong- 
ing to  litigants,  in  County  Treasurer's  hands,  placed  there  by  order  of 
Court,  subject  to  the  order  of  the  Court,  is  liable  to  taxation,  and  may  be 
assessed  to  the  Treasurer  by  name,  and  when  assessment  is  levied  it 
becomes  a  lien  on  the  money  in  the  Treasurer's  hands.     People  v. 
Lardner,  30  Cal.  242. 

50.  Money  on  Deposit. — A  tax  levied  on  money  on  deposit 
is  legal,  and  the  levy  creates  a  judgment  and  lien  on  the  property,  having 
the  force  and  effect  of  an  execution.    Yuba  Co.  v.  Adams,  7  Cal.  35. 

51  Moral  Obligation. — The  Legislature  may,  in  strict  conformity 
with  its  constitutional  powers  and  duties,  recognize  a  moral  obligation 
as  the  sole  basis  for  the  imposition  of  taxes.  (Beals  v.  Amador  County, 
5  Cal.  624.)  Where  a  prior  statute  for  the  ascertainment  of  a*debt 
due  from  one  County  to  another,  and  to  provide  for  its  payment  by  a 
tax  thereby  imposed,  without  allowing  or  making  provision  for  the  pay- 
ment of  interest  thereon,  under  which  enactment  the  debt  was  fully 
paid,  it  is  competent  for  the  Legislature,  by  subsequent  enactment,  to 
provide  for  the  payment  of  interest  on  such  debt,  by  the  imposition  of 
a  further  tax  for  that  purpose.  Beals  v.  Amador  County,  34  Cal.  624. 

52.  Mortgage. — Section  five  of  the  Revenue  Act,  in  enumer- 
ating the  property  subject  to  taxation,  specifies,  amongst  other  classes  of 
property,  ' '  money  at  interest  secured  by  mortgage  or  otherwise." 
(Stat.  1861,  p.  421.)  The  words,  "secured  by  mortgage  or  otherwise," 
add  nothing  to  the  force  of  the  sentence,  and  are  mere  surplusage.  It  is 
evident  that  "  money  at  interest "  was  intended  to  be  a  separate  subject 
of  taxation,  as  contra-distinguished  from  other  debts  due  to  the  party, 


580  FORMS   OF     COMPLAINTS. 

and  is  to  be  taxed  without  reference  to  the  indebtedness  of  the  party 
assessed ;  and  all  other  "  solvent  debts  "  due  to  him  in  excess  of  his 
indebtedness,  are  also  to  be  taxed.  People  v.  Whartenby,  Cal.  Sup. 

a.,  Oct.  T.,  1869. 

53.  National  Banks. — The  State  may  impose  a  tax  upon  the 
real  estate  and  shares  of  National  Banks  within  its  limits,  but  Congress 
has  reserved  to  itself  the  exclusive  power  over  the  taxation  of  banks 
and  bank  property  of  other  descriptions.   (State  v.  First  National  Bank, 
4  Nev.  348.)    Congress  having  pointed  out  a  method  by  which  the 
real  estate  of  the  National  Banks  within  any  State  may  be  taxed,  and 
also  the  method  of  taking  their  stock,  the  states  are  excluded  from  all 
other  methods  of  taxation  on  bank  property.     State  v.  First  National 
Bank,  4  Nev.  348. 

54.  National  Bank  Notes. — The  notes,  bills,  bonds,  etc.,  of 
National  Banks  are  the  commodity  in  which  those  banks  deal  in  the 
ordinary  course  of  their  business;  state  taxes  upon  them  are  state  taxes 
upon  the  business  of  the  bank,  and  such  taxes  the  State  cannot  impose. 
State  v.  First  National  Bank,  4  Nev.  348. 

55.  Nevada. — All  tangible  property  within  the  State  of  Nevada 
is  subject  to  one  and  only  one  annual  tax.     Each  acre  of  land  and  each 
piece  of  coined  money  is  liable  to  such  tax.     A  tax  on  money  at  interest 
secured  by  mortgage  on  land  is  neither  a  tax  on  the  pieces  of  money 
loaned,  the  land  on  which  the  security  is  taken,  nor  upon  the  paper  upon 
which  the  promise  to  pay  is  written.     But  it  is  a  tax  upon  the  chose  in 
action  or  right  to  collect  the  debt.     Notes  and  county  warrants  are  prop- 
erty subject  to  taxation  under  the  revenue  laws  of  the  State.     State  v. 
First  National  Bank,  4  Nev.  348. 

56.  Notice. — When  the  statute  provides  that  the  District  Attorney, 
before  commencing  suit,  shall  publish  notice  to  delinquents,  it  is  not 
.necessary  to  aver  in  the  complaint  that  this  notice  was  published,  but 
the  failure  to  publish  this  notice  must  be  taken  advantage  of  by  plea 
dn  abatement,  or  it  is  waived.     People  v.  Rains  (No.  2),  23  Cal.  131. 

57.  Notice   of  Assessment. — The    time    prescribed    by  the 
.revenue  law  (Stat.  of  1866,  169),  within  which  the  assessor  is  to  com- 
.plete  his  assessment  roll,  is  only  for  the  convenience  of  other  officers. 
Jf  dhe  assessor  is  dilatory  he  may  render  himself  liable  on  his  bond, 
.but  his  dilatoriness  furnishes  no  matter  of  which  a  tax  payer  can  com- 


FOR  TAXES  AND  TAXATION.  581 

plain,  or  on  account  of  which  he  can  defeat  the  tax.     State  v.  Western 
Union  Telegraph  Co.,  4  Nev.  338. 

53.  Not  Debts. — Taxes  are  not  debts  within  the  meaning  of  that 
clause  of  the  Act  which  provides  that  the  notes  shall  be  "  a  legal  tender 
in  payment  of  all  debts,  public  and  private."  Congress  by  these  terms 
only  intended  such  obligations  for  the  payment  of  money  as  are 
founded  upon  contract.  Perry  v.  Washburn,  20  Col.  318;  see  People 
v.  Seymour,  16  Cal.  332. 

59.  Not  Founded  on  Contract. — A  tax  is  not  founded  on 
contract,  and  does  not  establish  the  relation  of  debtor   and   creditor 
between   the  tax  payer  and   State.      It  is  a  charge  upon  persons  or 
property  to  raise  money  for  public  purposes.     (Perry  v.  Washburn,  20 
Cal.  318;  approved  in  Mendocino  County  v.  Morris,  32    Cal.  154.) 
That  "  taxes  are  not  debts  drawing  interest,"  and  that  "a  tax  is  a  charge 
upon  persons  to  raise  money  for  public  purposes,"  approved  in  (People 
v.  Steamer  America,  34  Id.  68 1.)     Taxes  are  charges  imposed  by  or 
under  the  authority  of  the  Legislature  upon  persons  or  property  subject 
to  its  jurisdiction.     People  v.  McCreery,  34  Cal.  432;  see  People  v.  Sey- 
mour, 1 6  Cal.  332. 

60.  Parties. — The   "State  of    Nevada"    is    the   proper    party 
plaintiff  in  a  suit  for  delinquent  school  taxes  under  Section  thirty-five 
of  the* Act  of  March  20,  1865,  relating  to  schools.   (Statutes  of  1864-5.) 
State  v.  First  National  Bank  (No.  3),  4  Nev,  491. 

| 

61.  Passengers  Leaving  State. — The  tax  of  one  dollar  on 
passengers   leaving  this  State  is  not  a  poll  tax,  and  does  not  conflict 
with   the  constitutional  provision  limiting  the  poll  tax  to  four  dollars. 
(Ex  parte  Crandall,  Habeas  Corpus,  i  Nev.  294. 

62.  Personal  Property. — Personal   property  is  to   be   assessed 
and  taxed  in  the  county  in  which  it  is  situated,  except  money  and  gold 
dust,  which  may,  at  the  op:ion  of  the  owner,  be  taxed  in  the  county  in 
which  he  resides.     (People  v.  Niles,  35  Cal.  282.)     So,  when  property 
is  in  transiiu,  it  must  be  taxed  in  the  county   in  which  the   owner 
resides.     So  of  vessels,  which  are  personal  property,  and  have  no  fixed 
situs.   (2  Bouv.  Law  Did.  528;  People  v.  Holladay,  25  Cal,  308;  cited 
in  35  Cal.  282. 

63.  Personal. — The  personal  estate  of  a  deceased  person  which 


582  FORMS    OF     COMPLAINTS. 

is  taxable  in  the  town  in  which  he  last  dwelt,  under  Rev.  Stat.,  Ch.  7, 
§  10,  cl.  7,  is  not  taxable  in  any  other  town.  (Hurdy  v.  Monmouth,  6 
Allen  (Mass.)  277.)  Personal  estate  of  a  ward,  in  the  possession  or 
under  the  control  of  a  guardian,  is  liable  under  the  statutes  to  taxation 
in  the  place  where  such  guardian  resides.  Tousey  v.  Bell,  23  Ind.  423. 

64.  Placerville. — The  act  incorporating  the  City  of  Placerville 
granted  to  the  Common  Council  the  right  to  levy  and  collect  certain 
taxes,  and  constituted  the  City  Marshal  ex  officio  collector  of  taxes,  and 
made  it  his  duty  to  collect  all  taxes  due  the  City,  authorized  the  sale  of 
the  property  of  delinquents  for  taxes  due  the  City,  and  further  enacted 
that  the  manner  of  assessing  and  collecting  taxes,  and  proceedings  for 
the  sale  of  property  in  cases  of  delinquency,  should  be  regulated  by 
ordinance.     The  Common  Council  enacted  by  ordinance  a  mode  of  col- 
lecting delinquent  taxes,  remaining  unpaid  after  a  certain  date,  whereby 
the  entire  duty  was  devolved  upon  the  City  Attorney,  and  the  services  of 
the  City  Marshal  dispensed  with.    Held,  that  the  ordinance  prescribing 
such  mode  was  void,  because  in  conflict  with  said  incorporation  act. 
City  of  Placerville  v.  Wilcox,  35  Cal.  21. 

65.  Possessory  Right. — Taxation  of  the  possessory  right  is  not 
a  violation  of  the  section  of  the  organic  act  which  prohibits  the  terri- 
torial legislature  from  taxing  the  property  of  the  United  States.     (Hale 
and  Norcross  Gold  and  Silver  Mining  Co.  v.  Storey  County,  i  Nev. 
104.)    The  object  of  that  section  was  to  protect  the  Government,  and 
not  to  prevent  the  taxation  of  settlers  upon  public  lands.     The  posses- 
sion by  the  citizen  of,  and  his  possessory  interest  in  the  public  lands,  for 
mining,  agriculture,  or  other  purposes,  constitutes  a  species  of  property 
recognized  by  law,  and  is  subject  to  taxation  by  the  State.     (People  v. 
Shearer,  30  Cal.  645. 

66.  Power    of   Legislature. — That  the   Legislature   has  the 
power  of  taxation,  see  (People  v.  Pacheco,  27  Cal.  175.)    Taxing  power 
is  an  incident  of  sovereignty,  the  exercise  of  which  belongs  exclusively 
to  every  State,  and  attaches  alike  upon  everything  which  comes  within  its 
jurisdiction.    (People  v.  Coleman,  4  Cal.  47.)   A  tax  must  have  its  origin 
in  a  law  enacted  for  that  purpose.    (People  v.  McCreery,  34  Cal.  432.)   It 
has  power  to  regulate  the  mode  of  taxation.    (DeWittf.  Hays,  2  Cal.  463.) 
The  Legislature  has  exclusive  power  of  apportionment  and  taxation. 
The  Constitution   contains   no   inhibition  to  the  tax,   and  prescribes 
no  rule   of  apportionment.     (Bennett  v.   Mayor   of  Sacramento,  12 


FOR  TAXES  AND  TAXATION.  583 

Cal.  76.)  The  only  limitation  upon  the  taxing  power  of  the  Legisla- 
ture is  the  provision  for  equality  and  uniformity  found  in  Section  13 
of  Art.  4  of  the  Constitution.  (Blanding  v.  Burr,  13  Cal.  343.) 
The  cases  of  (People  v.  Coleman,  4  Cal.'  46 ;  High  v.  Shoemaker,  22 
Id.  363),  so  far  as  they  are  in  conflict  herewith,  are  overruled  in  (People 
v.  Me  Creery,  34  Cal.  432.)  The  power  of  taxation  was  given  to  the 
Legislature  without  limit,  for  all  purposes  allowed  by  the  Constitution. 
As  to  limit  of  powers  of  taxation  and  appropriation,  under  the  eighth 
Article  of  the  Constitution,  see  (Nougues  v.  Douglass,  7  Cal.  65.)  The 
Legislature  has  the  power  of  taxation,  without  restriction  as  to  mode,  or 
limitation  as  to  time,  and  may  prescribe  a  mode  of  correcting  an  in- 
formal assessment;  (People  v.  Seymour,  16  Cal.  332;)  but  cannot  fix 
the  assessed  value  of  property.  (People  v.  Hastings,  29  Cal.  449.) 
The  fact  that  the  Legislature  has  once  exercised  its  powers  in  limiting 
the  extent  of  taxation  in  municipal  corporations,  under  the  37th  Sec.  of 
Art.  4th  of  the  Constitution,  does  not  prevent  it  from  again  exercising 
its  power,  by  enlarging  its  authority  to  tax,  and  the  Legislature  can  im- 
pose a  general  tax  upon  all  the  property  of  the  State,  or  a  local  tax 
upon  the  property  of  particular  political  sub-divisions,  as  counties,  cities, 
and  towns.  (Blanding  v.  Burr,  13  Cal.  343.)  Limitations  by  Congress 
upon  the  right  of  a  state  to  tax  its  citizens  are  to  be  strictly  construed. 
(People  v.  Shearer,  30  Cal.  645.)  It  has  the  power  to  require  the 
payment  by  foreigners  of  a  license  fee,  for  the  privilege  of  working 
gold  mines  in  the  State.  (People  v.  Naglee,  i  Cal.  322.)  The  power 
of  taxation  is  a  power  which  the  Legislature  takes  from  the  law  of  its 
creation,  to  impose  taxes  upon  the  property  of  the  citizens  for  the 
support  of  the  Government.  Taylor  v.  Palmer,  31  Cal.  240. 

67.  Practice. — Where  an  action  to  recover  a  personal  judgment 
for  a  tax,  commenced  in  a  Justice's  Court,  is  transferred  to  a  District 
Court,  an  amended  complaint  may  be  filed  in  the  District  Court  to 
enforce  a  lien  on  real  estate,  for  the  tax.     People  v.  Nelson,  36  Cal. 

375- 

68.  Property  in  Lands,  how  Construed. — The  term  prop- 
erty in  lands,  is  not  confined  to  title  in  fee,  but  includes  any  usufruct- 
uary interest,  whether  it  be  leasehold  or  a  mere  right  of  possession. 
State  of  California  v.  Moore,  12  Cal.  56. 

69.  Promissory  Notes. — The  full  sum  due  upon  promissory 
notes  is  taxable,  notwithstanding  a  part  thereof  is  not  due  until  after  the 


584  FORMS   OF     COMPLAINTS. 

close  of  the  assessment  year;  the  word  "debt"  is  used  in  the  Statute 
1861,  p.  419,  §  5,  without  limitation  or  qualification  in  respect  to  time 
when  due.  People  v.  Arguello,  Cal  Sup.  Ct.,  Jul.  T.,  1869;  see  Vol. 
i.  p.  218,  Note  54. 

70.  Property  of  Guardian. — The  property  of  a  guardian  can- 
not be  seized  to  pay  taxes  assessed  against  him  upon  the  property  of  his 
ward.     Tousey  v.  Bell,  23  Ind.  423. 

71.  Proceeds  of  Mines. — The  constitutional  provision,  Art.  10, 
which  prescribes  the  taxation  of  all  property,  real,  personal  and  posses- 
sory, excepting  mines  and  mining  claims,  the  proceeds  of  which  alone 
shall  be  taxed,  "means  that  the  entire  annual  proceeds  of  mines  are 
subject  to  taxation,  and  not  the  mere  proceeds  on  land "  when  the 
assessor  happens  to  visit  the  mines.     (State  v.  Kruttschnitt,  4  Nev.  178.) 
Under  the  revenue  law  as  amended  in  1867  (Statutes  of  Nev.,  1867,  p. 
1 59),  assessors  must  make  their  estimates  of  the  value  of  the  proceeds  of 
mines  on  the  basis  of  legal  tender  (paper  currency),  and  all  ad  valorem 
taxes,  whether  on  the  proceeds  of  mines  or  other  property,  must  be  equal. 
(State  v.  Kruttschnitt,  4  Nev.  178.)     The   quarterly  payment  of  taxes 
on  the  proceeds  of  mines,  provided  for  by  the  revenue  laws,  are  so 
arranged  that  the  annual  proceeds  of  mines  do  not  pay  a  larger  pro 
rata,  even  as  to  interest  acccount,  than  if  one  annual  tax  for  the  annual 
proceeds  were  imposed,  payable  at  the  time  other  annual  taxes  are  pay- 
able.    (State  v.  Kruttschnitt,  4  Nev.  178.)     The  provisions  of  the  reve- 
nue law  of  1865  (Statutes  if  Nev.,  1865,  271),  for  quarterly  assessments 
on  the  proceeds  of  mines  and  quarterly  payment  of  taxes,  do  not  impose 
more  than  a  regular  pro  rata  of  taxation  on  the  proceeds  of  mines,  nor 
require  the  said  property  to  be  paid  for  more  than  once.     (State  v. 
Kruttschnitt,  4  Nev.  178.)    An  assessment  of  the  product  of  a  mine 
made  under  the  Revenue  Act  as  amended  in  1867  (Statutes  of  Nev., 
1867,  159),  must  give  both  the  amount  and  value  of  such  product,  and 
if  an  assessor  received  a  sworn  statement  giving  the  products  of  a  mine 
as  bullion  of  a  certain  value  without  stating  the  amount,  it  his  is  duty  to 
treat  it  as  the  value  in  gold,  and  add  thereto  a  sufficient  per  centage  to 
fix  the  paper  money  value,  and  if  he  omit  to  do  so,  he  is  derelict  in 
his  duty.     State  v.  Kruttschnitt,  4  Nev.  178. 

72.  Railroad    Companies. — The  ruling  in  (Kneeland  v.  Mil- 
waukee, 15  Wis.  454)  as  to  the  constitutionality  of  the  law  taxing  rail- 
road companies  a  per  cent,  upon  their  gross  earnings,  disposes  of  an 


FOR  TAXES  AND  TAXATION.  585 

objection  to  the  validity  of  a  tax,  because  of  the  omission  of  railroad 
property  in  the  assessment  roll.  Dean  v.  Gleason,  16  Wis.  i. 

73.      Real   Estate.— An  assessment  of  land  to  A.  B.  and  all 

claimants  "  known  and  unknown,"  is  valid  and  effectual  against  the 
property,  even  if  A.  B.  was  neither  the  owner  of  nor  in  possession  of 
the  property  at  the  time  of  the  assessment.  (O'Grady  v.  Barnhisel,  23 
Cat.  287.)  Where  land  is  unoccupied  and  the  owner  is  unknown,  it 
must  be  assessed  to  "unknown  owners."  (Moss  v.  Shea,  25  Cal.  38.) 
The  listing  and  valuation  of  real  estate  for  the  purpose  of  taxation  is  an 
essential  prerequisite  to  the  validity  of  all  subsequent  proceedings. 
(Ferris  v.  Coover,  10  Cal.  589.)  Lands  owned  by  several  persons  as 
tenants  in  common,  may  be  assessed  to  them  jointly.  (People  v. 
McEwen,  23  Cal.  54.)  If  in  assessing  a  city  lot  owrted  and  occupied 
by  the  owner  as  a  single  lot,  he  assesses  one  part  to  the  owner,  and 
another  part  to  unknown  owners,  the  assessment  to  unknown  owners  is 
illegal.  (Bidleman  v.  Brooks,  28  Cal.  72.)  An  assessment  to  M. 
and  D.,  and  to  all  owners  and  claimants  known  and  unknown,  and 
to  all  owners  and  claimants  of  any  interest,  present  or  future,  therein, 
or  any  lien  upon  the  same,  is  good  under  the  Act  of  1854,  as 
amended  by  the  Acts  of  1857  and  1859.  (Brunn  v.  Murphy,  29  Cal. 
326.)  For  statutes  relative  to  the  assessment  of  land,  see  Gen.  Laws 
of  Cal.  ^[  6,161,  et  seq. 

74.  Remedy  at  Law  and  Equity. — If  a  tax  upon  the  franchise 
has  been  illegally  imposed,  or  if  upon  the  face  of  the  proceedings  a 
valid  legal  objection  appears,  the  plaintiff  has  a  perfect  remedy  at  law, 
and  a  court  of  equity  has  no  right  to  interpose.     De  Witt  v.  Hays,  2 
Cal.  463;  Robinson  v.  Gaar,  6  Id.  273. 

75.  Remitted,  when. — When  an  act  of  the  Legislature  provides 
that  taxes  which  have  been  remitted  by  the  Board  of  Supervisors,  shall 
be  exempt  from  its  provisions,  it  is  not  necessary  to  aver  in  the  com- 
plaint, that  the  taxes  sued  for  have  not  been  remitted,  but  if  such  fact 
exist  it  should  be  pleaded  in  bar  of  the  action.     People  v.  Todd,  23 
Cal.  181. 

76.  Return  of  List. — Returning  a  list  of  trust  property  to  the 
assessor  of  a  town  in  which  it  is  not  legally  taxable,  does  not  authorize 
its  taxation  therein.     Hurdy  v.  Yarmouth,  6  Allen,  277. 

77.  Revenue  Act  of  1857. — The  Revenue  Act  of  1857  was 


586  FORMS   OF    COMPLAINTS. 

not  rendered  void  for  unconstitutionality,  because  of  the  omission  to 
tax  all  the  lands  in  the  state.     High  v.  Shoemaker,  22  Cal.  363. 

78.  Right  to  Mine. — Where  the  assessor  in  making  his  assess- 
ment uses  this  language:  "one  mine  of  four  thousand  four  hundred 
feet,  situated  on  Last  Chance  Hill,"  it  does  not  convey  the  idea  that 
he  was  assessing  or  attempting  to  assess  the  fee  of  the  land  in  which 
the  mine  was  situated,  but  the  possessory  claim  of  the  miner  and  right 
to  mine  on  a  certain  lode  or  vein  of  ore.     The  meaning  of  this  lan- 
guage is  determined  by  common  usage  in  this  country.     State  v.  Real 
del  Monte  Silver  Mining  Co.,  i  Neo.  523. 

79.  Rolling  Stock  of  a  Railroad  Company. — The  rolling 
stock  of  a  railroad  company,  running  its  trains  over  a  section  of  road 
under  an  easement  or  license,  without  a  vested  interest  in  such  road,  is 
not  liable  to  be  taxed  in  the  county  where  such  section  of  road  is  situated, 
under  a  law  which  provides  that  the  rolling  stock  of  a  railroad  company 
shall  be  taxed  in  the  several  counties,  etc., pro  rata,  in  proportion  as  the 
length  of  the  main  track  in  each  county,   etc.,  bears  to  the  whole 
length  of  the  road.     Cook  County  v.  Chicago  R.R.  Co.,  35  EL  460. 

80.  Sale  by  Sheriff— The  Revenue  Act  of  1861,  p.  455,  §  45, 
requires  the  sheriff  to  sell  the  smallest  quantity  of  the  real  estate  that  a 
purchaser  will  take,  and  pay  the  judgment  and  costs;  and  Section  8  of 
the  Act  of  1862,  p.  523,  provides  the  sale  shall  be  made  in  the  same 
manner,  when  the  judgment  contains  no  special  direction  with  regard 
to  the  mode  of  selling.     Gillis  v.  Barnett,  Cal.  Sup.  Ci.,  Oct.  T.,  1869. 

81.  San  Bernardino. — In  an  action  to  recover  delinquent  taxes 
in  the  County  of  San  Bernardino,  assessed  for  the  year  1860,  the  com- 
plaint should  state  the  assessed  value  of  the  real  estate,  the  improve- 
ments, and  the  personal  property,  each  separately.     People  v.  Rains,  23 
Cal.  131. 

82.  Spanish  Grant. — A  grant  of  three  square  leagues  of  land 
made  by  the  Mexican  Government,  to  be  selected  within  a  large  tract, 
is  real  estate  liable  to  taxation,  although  not  yet  surveyed.     People  v . 
Crockett,  33  Cal.  150. 

83.  Situs  of  Personal  Property  for  Taxation. — To  author- 
ize the  taking  of  personal  property  in  any  other  County  than  that  in 
which  the  owner  resides,  it  must  appear  that  such  property  is  kept  or 


FOR  TAXES  AND  TAXATION.  587 

maintained  in  such  County,  and  is  not  there  casually  or  in  transitu  or 
temporarily  in  the  ordinary  course  of  commerce  or  business.  (People 
v.  Niles,  35  Cal.  282.)  A  steamboat,  whose  owner  resides  in  New 
York,  and  by  whom  it  was  sent  to  San  Francisco,  and  used  in  naviga- 
tion within  the  State,  is  liable  to  assessment  and  taxation.  (Minturn  v. 
Hays,  2  Cal.  590.)  That  it  is  taxed  in  New  York  is  no  ground  that  it 
should  not  be  taxed  here;  the  property  of  all  non-residents  of  the 
State  may  be  taxed.  (/<£)  And  if  in  the  possession  of  a  trustee  or 
agent,  it  may  properly  be  assessed  to  the  trustee  or  agent  in  possession. 
People  v.  Home  Ins.  Co.,  29  Cal.  533. 

84.  State  Bonds. — Bonds  of  the  State  of  California  are  personal 
property,  within  the  meaning  of  the  Revenue  Act,  and  are  subject  to  tax- 
ation.    (People  v.  Home  Ins.  Co.,  29  Cal.  533.)     That  portion  of  the 
capital  which  a  bank   has   invested   in  the   stocks,  bonds,  or   other 
securities  of  the  United  States,  is  not  liable  to  State  taxation.     Bank  of 
Commerce  v.  New  York,  2  Black.  (U.S.)  620. 

85.  State  Taxes  need  not  be  Levied  by  County  Com- 
missioners.— The  levy  of  state  taxes  by  the  Board  of  County  Com- 
missioners,  though   provided   for  in  the  Revenue  Laws,   is  an  idle 
ceremony,  for  the  reason  that  the  levy  is  made  by  the  Legislature. 
State  v.  Manhattan  Company,  4  Nev.  318. 

86.  Stock  of  the  United  States. — Stock  of  the  United  States 
sis   notubject  to  taxation,  and  state  laws  to  that  end  are  unconstitutional, 
whether  they  i  npose  the  tax  on  the  stock  eo  nomine,  or  include  it  in  the 
aggregate  of  the  tax  payer's  property,  to  be  valued  at  what  it  is  worth. 
Bank  of  Commerce  v.  New  York,  2  Slack.  U.S.  620. 

87.  Suit  by  Tax  Collector. — A  collector  of  taxes  cannot  com- 
pel payment  by  suit,  except  in  those  cases  in  which  the  statute  expressly 
confers  the  right.     Packard  v.  Tisdale,  50  Maine,  376. 

88.  Submission  to  Illegal  Taxation. — Mere  submission  to 
illegal  taxaction  should  not,  except  in  an  extreme  case,  be  construed  into 
a  recognition,  so  as  to   estop  the  party  taxed  from  denying  it.     Lang- 
worthy  v.  Dubuque,  13  Iowa  (5  With.)  86. 

89.  "  Taxation  "  and  "  Taxed." — The  words  "  taxation  "  and 
"  taxed,"  in  Section  1 3  of  Art.  iii.  of  the  Constitution,  relate  to  general 
taxes  upon  all  property  which  are  levied  to  defray  the  ordinary  expenses 


588  FORMS   OF    COMPLAINTS. 

of  the  State,  County,  Town,  and  Municipal  Governments,  and  not  to 
assessments  levied  on  lots  fronting  on  a  street  in  a  city  to  pay  the  ex- 
penses of  their  improvements.  Emery  v.  San  Francisco  Gas  Co.,  28 
Cal  345- 

90.  Tax  Sale. — Property  sold  for  taxes  must  at  the  time  of  the 
sale  be  sold  for  the  entire  amount  of  tax  for  which  it  is  liable,  or  the 
sale  is  void.     (Bucknall  v.  Story,  36  Cal.  67.)    A  purchase  of  land,  at 
a  sale  of  the  same  for  taxes,  by  the  agent  of  one  who  was  in  possession 
thereof,  either  by  himself  or  his  tenants,  does  not  pass  or  otherwise 
affect  the  title  to  such  land.    Bernal  v.  Lynch,  36  Cal.  135;  citing  Kelsey 
v.  Abbott,  13  Cal.  609;  Moss  v.  Shear,  25  Cal.  38;  McMinn  v.  Whelan, 
27  Cal.  318;  Coppinger  v.  Rice,  33  Cal.  408. 

91.  Tax  Sale — Injunction. — A  court  will  not  restrain  a  sale 
for  taxes,  when  it  is  apparent  upon  the  face  of  the  proceedings  that  the 
sale  would  be  void.     Bucknall  v.  Story,  36  Cal.  67;  citing  as  authority 
De  Witt  v.  Hays,  2  Cal.  469;  Burr  v.  Hunt,  18  Cal.  307;  Robinson  v. 
Gear,  6  Cal.  278;  Berri  v.  Patch,  12  Cal.  299;  Weber  v.  San  Francisco, 
i  Cal.  455;  Hardenburg  v.  Kidd,  10  Cal.  403. 

92.  Title. — If  a  person  is  in  possession  of  land,  claiming  the  same 
as  his  own,  it  is  his  duty  to  pay  the  taxes,  although  he  has  no  paper 
title,  and  is  a  trespasser,  and  under  such  circumstances  he  cannot  acquire 
an  outstanding  title  by  purchasing  at  a  tax  sale.     The  rule  is  the  same 
if  the  possession  is  such  that  it  would  give  the   possessor  title  by  the 
Statute  of  Limitations.       Barrett  v.  Amerein,  36  Cal.  322;   citing  as 
authority  McMinn  v.  Whelan,  27  Cal.  318;  Coppinger  v.  Rice,  33  Cal. 
425;   Bernal  v.  Lynch,  Id.  135;    Moss  v.  Shear,  25  Id.  38;    see,  also, 
Garwood  v.  Hastings,  Cal.  Sup.  Ct.,  Jul.  T.,  1869. 

93.  Tax  Warrant. — A  tax  warrant   may  direct  the  tax  collector 
to  pay  over  the  taxes  when  collected  to  the  select-men  instead  of  the 
treasurer.     Clemons  v.  Lemons,  36  Vt.  673. 

94.  Tax,  where  Payable. — Taxes  are  payable  in  the   county 
where  property  is  first  assessed.   The  payment  of  a  second  assessment  on 
the  same  property,  after  a  removal  to  another  place,  is  not  a  discharge 
of  the  former.     People  v.  Holladay,  2  5  Cal.  300. 

95.  Time — Assessment  Ended. — A  complaint  in  an  action  to 
recover  unpaid  taxes  is  sufficient  if  it  avers  "  that  certain  sums  are  due 


FOR  TAXES  AND  TAXATION.  589 

for  certain  taxes  levied  in  the  year  1858  upon  certain  real  estate  assessed 
in  the  year  1858,"  without  stating  that  these  taxes  were  levied  under  an 
assessment  ending  on  the  ist  day  of  March,  1858.  People  v.  Todd, 
23  Cal.  181. 

96.  Trying  Legality  of  a  Tax.— A  court  of  equity  will  enter- 
tain a  bill  against  a  municipal  corporation,  for  the  purpose  of  trying  the 
legality  of  a  tax  imposed  by  the  corporation.     Worth  v.  Fayettville,  I 
Wins.  (N.C.),  No.  2  (Eg.)  70. 

97.  Unauthorized   Alterations    in   Assessment   Roll. — 

An  assessor  has  no  power  to  make  an  alteration  in  the  assessment  roll 
after  it  has  passed  out  of  his  hands.  The  roll  in  its  original  state  is  the 
proper  assessment  roll,  and  when  it  remained  legible  as  originally  made 
an  unauthorized  alteration  does  not  avoid  it,  and  that  it  is  competent 
evidence  on  the  alteration  being  accounted  for.  State  v.  Manhattan 
Company,  4  Nev.  318. 

98.  United  States  Land. — Lands  belonging  to  the  United 
States  are  not  liable  to  taxation  by  the  State  under  the  revenue  laws 
of  California,  or  the  Act  of  Congress  admitting  the  State  of  California 
into  the  Union.  People  v.  Morrison,  22  Cal.  73. 

99.  Validity   of  Tax. — A  tax  in  order  to  be  valid  must  rest 
upon  an  assessment  made  in  the  mode  prescribed  by  law,  by  the  duly 
elected  assessor.    (Peoples.  Hastings,  29  Cal.  449.)    An  assessor  must 
fix  the  valuation  of  property  by  marks  showing  whether  the  figures  rep- 
resent dollars,  cents,  or  eagles.  (Id.)  Such  valuation  is  essential  to  the  val- 
idity of  a  property  tax.    (Id.)   And  when  the  owner  is  known,  the  assess- 
ment must  be  made  against  him.     (Kelsey  v.  Abbott,  13  Cal.  609.) 
Assessment  must  be  certain  as  to  person,  property  and  amount.     (Id.) 
Copying  a  former  assessment  roll  by  another  assessor  is  not  an  assess- 
ment of  property.     People  v.  Hastings,  29  Cal.  449. 

100.  Validity  of  Tax    of  Personal  Property. — Personal 
property  may  be  assessed  in  bulk,  without  statement  of  character  of 
property.     (People   v.  Sneath,    28   Cal.  612.)     Assessment  of   per- 
sonal property  of  the  firm,  made  to  the  firm  after  its  dissolution,  is  void. 
(Id.)     Personal  property  may  be  assessed  to  a  non-resident.     (People 
v.  Home  Insurance  Co.,  29  Cal.  533.)     Assessing  personal  property 
to  wrong  owner    does  not  invalidate   the  assessment.      (Id.)      A 
mortgage  on  such  cannot  be  assessed,  but  the  assessment  should  be 


59O  FORMS    OF    COMPLAINTS. 

made  of  the  debt  which  the  mortgage  was  given  to  secure.      People  v. 
Eastman,  25  CaL  60 1. 

101.  Validity  of  Tax  of  Real  Property.— To  impart  valid- 
ity to  the  acts  of  the  assessor,  the  provisions  of  the  statute  must  be  strictly 
followed.     (Moss  v.  Shea,  25  Cal.  38.)     An  assessment  to  A.  B.,  and 
all  claimants  known  or  unknown,  is  valid  and  effectual.     (O'Grady  v. 
Barnhisel,  23  Cal.  287.)    Assessment  may  be  made  to  unknown  owners. 
In  such  a  case  the  assessor  must  state  in  his  list  that  the  land  is  so 
assessed.     (Moss  v.  Shear,  25  Cal.  38.)     Lands  owned  by  several  per- 
sons, as  tenants  in  common,  may  be  assessed  to  them  jointly.   People 
v.  McEwen,  23  CaL  54. 

102.  Value. — An  assessment  of  town  lots,  which  does  not  give 
their  value  either  in  gross  or  in  detail,  is  radically  defective.    (Hurlbut 
v.  Butenop,  27  Cal.  50.)    That  an  assessment  is  void  when  there  is  no 
valuation,  People  v.  S.  F.  Sav.   Union,  31   CaL  132;  cited  in    Gar- 
wood  v.  Hastings,  Cal.  Sup.  Ct.,  Jul  T.,  1869. 

103.  Verification. — The  acts  in  relation  to  the  collection  of  de- 
linquent taxes  which  compel  the  defendant  to  verify  his  answer,  do  not 
change  the  rule  in  the  forty-sixth  section  of  the  Practice  Act,  that  where 
a  complaint  is  not  verified  a  general  denial  of  its  allegations  in  the 
answer  will  put  in  issue  all  the  material  allegations.     Rowjey  v.  How- 
ard, 23  CaL  401. 


FOR  TAXES  AND  TAXATION.  591 


No.  540. 

ill.    Tax  on  Personal  Property,  Amount  Less  than  Three 
Hundred  Dollars. 


In  the  Justice's  Court  of  the  County 

of State  of  Oali-   \- 

fornia. 


Before ,  Justice  of  the  Peace. 


THE   PEOPLE   OF  THE   STATE   OF 
CALIFORNIA,  Plaintiff, 
against 
.  Defendant. 


The  People  of  the  State  of  California,  by , 

District  Attorney  of  the  County  of ,  complain 

of  the  above  named  defendant,  and  for  cause  of  action 
allege: 

I.     That  between  the  ....  day  of ,  18. ., 

and  the  ....  day  of ,  1 8 .  . ,  in  the  County  and 

State  aforesaid,  A.  B.,  then  and  there  being  County 
Assessor  of  said  County,  did  duly  assess  and  set  down 
upon  an  assessment  roll,  all  the  property  real  and  per- 
sonal in  said  County  subject  to  taxation,  and  that  said 
assessment  roll  was  afterwards  submitted  to  the  Board 
of  Equalization  of  said  County,  and  was  by  said  Board 
duly  equalized,  as  provided  by  law;  that  the  above 
named  defendant  was  then  and  there  the  owner  of  cer- 
tain personal  property  so  assessed  and  valued  at 
. . .  dollars,  and  was  also  the  owner  of 


592  FORMS    OF    COMPLAINTS. 

dogs;   that  upon  said   property  there  has  been  duly 
levied  for  the  fiscal  year  1 8 . . . 

A  State  tax  of $ 

And  a  County  tax  of  ....  $ 

And  a  tax  on  said  dogs  of  $ 

Amounting  in  the  whole  to  $ 

All  of  which  are  due  and  unpaid. 

Wherefore  plaintiffs  pray  judgment  against  said  de- 
fendant: 

1 .  For  the  sum  of dollars,  and  that  said 

taxes,  and  all  costs  subsequent  to  the  assessment  thereof, 
be  paid. 

2.  That  all  costs  of  this  suit  be  paid  in  gold  or  silver 
coin  of  the  United  States. 

3.  And  plaintiffs  pray  for  such  other  judgment  as  to 
justice  belongs. 


District  Attorney,  County  of 


No.  541. 

iv.    For  Non-Payment  of  License. 
[STATE  AND  COUNTY.]  [COURT.] 


THE   PEOPLE   OF   THE   STATE   OF 
CALIFORNIA, 

against 
,  Defendant. 


The  People  of  the  State  of  California,  plaintiff  in  this 

cause,  complain  against ,  defendant  herein,  and 

for  cause  of  complaint  show  and  charge,  that  on  the 

day  of ,  18 . . ,  at  the  City  of  * ,  in  the 


FOR  TAXES  AND  TAXATION.  593 

said  County,  the  said  defendant  did  attempt  to  carry  on, 
and  did  then  and  there  carry  on  the  business  of  [desig- 
nate business],  and  the  said  defendant  was  then  and 
there  required  by  the  provisions  of  an  act  entitled  "An 
Act  to  Provide  Revenue  for  the  Support  of  the  Govern- 
ment of  this  State,"  approved  on  the  ....  day  of 
,  18.  .,  to  take  out 'a  license  thereto,  in  pur- 
suance of  the  said  Act.  And  the  said  defendant  then 
and  there  so  attempted  to  carry  on  and  so  carried  on 
said  business  without  such  license  and  without  any 
license  thereto.  And  the  said  defendant  did  then  and 
there  unlawfully  fail,  neglect,  and  refuse  to  take  out  the 
license  in  such  case  by  said  Act  provided,  and  still  ne- 
glects and  refuses  so  to  do.  And  by  reason  of  the 

premises  the  sum  of dollars  then  and  there 

became  and  was  due  from  the  said  defendant,  and  pay- 
able by  him  to  the  collector  of  taxes  of  the  said  County, 
and  the  said  defendant,  although  often  requested  to  do 
so,  has  not  paid  the  said  sum  of  money  or  any  part 
thereof;  but  has  hitherto  wholly  neglected  and  refused, 
and  still  refuses  to  pay  the  same. 

Wherefore  said  plaintiff  asks  judgment  against  said 

defendant,  for  said  sum  of dollars,   together 

with dollars  damages,  as  by  said  Act  provided, 

and  the  costs  of  this  suit. 


District  Attorney, 


PART  FOURTH. 

PLEADINGS   OF    DEFENDANT. 


CHAPTER   I. 

DEMURRERS    IN   GENERAL. 

i .  The  office  of  a  demurrer  is  to  test  the  sufficiency 
of  a  pleading,  to  raise  an  issue  of  law  whereby  the  Court 
is  enabled  to  say  that,  admitting  plaintiff's  allegations  to 
be  true,  yet  he  has  no  cause  of  action.  ( i  Van  Santv.  Eq. 
PL  183;  i  Barb.  Ch.  Pr.  106;  Ocean  Ins.  Co.  v.  Field, 
2  Story  C.  Ct.  59.)  By  the  old  common  law  writers 
it  was  claimed  not  to  be  a  plea,  because  it  neither 
alleged  nor  denied  any  fact.  (Gould 's  PL  35;  2  Chitt. 
PL  678;  3  Id.  1,246.)  But  this  is  not  now  the  rule. 
(Oliphant  v.  Whitney,  34  CaL  25;  Furniss  v.  Ellis,  2 
Brock.  Marsh.  14;  New  Jersey  v.  New  York,  6  Pet. 
U.S.  323.)  Yet  whether,  technically  speaking,  it 
is  a  plea  or  not,  in  many  instances  it  is  the  most  import- 
ant paper  in  the  action,  and  when  properly  interposed 
it  may  settle  all  the  issues  of  the  case,  by  determining,  at 
the  threshold  of  the  action,  questions  which  otherwise 
would  only  be  disposed  of  on  the  hearing  of  the  facts. 
The  question  whether  the  plaintiff,  in  his  complaint, 


DEMURRERS  IN  GENERAL.  595 

has  stated  facts  sufficient  to  constitute  a  cause  of  action, 
is  thus  disposed  of  without  the  introduction  of  testi- 
mony or  the  form  of  a  trial. 

2.  Whether  a  complaint  be   demurrable  is  always 
an   important  inquiry,  to   determine   which  requires  a 
careful  and  analytical  examination.     The  statute  of  the 
several   States  prescribes  certain  special   grounds    for 
demurrer,  differing  in  some   respects,  but  the  general 
ground,  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  can  be  interposed  in  all 
courts  of  common  law  jurisdiction. 

3.  The  inquiries  to  be   made  by  defendant,  when 
served  with  the  complaint,  if  he  wishes  to  demur  to  it, 
is,  First,   "  Has  the  Court  jurisdiction  of  the  person  of 
the  defendant  ?"     If  the  answer  be  in  the  affirmative, 
then,   Second,  "Has  the  Court  jurisdiction  of  the  sub- 
ject  of  the   action  ?"     For   if  the  person  or  property 
named  in  the  complaint  is  beyond  the  jurisdiction  of 
the  Court,  for  any  reason  which  appears  upon  the  face 
of  the  complaint,  then  the  action  must  fall. 

4.  The  second  cause  of  demurrer  under  our  practice, 
is  as  to  the  capacity  of  plaintiff  to  sue;  for,  should  it 
appear  from  the  face  of  the  complaint  that  the  plaintiff 
has  no  capacity  to  sue,  the  action   likewise  falls.     The 
question  of  capacity  to  sue  often  arises  where  a  married 
woman  is  plaintiff,  or  one  of  the  plaintiffs,  or  when  a 
minor  sues,  or  when  a  person  sues  in  a  representative 
or  official  capacity. 

5.  But,  third,  the  Court  may  have  jurisdiction  of  the 
person  and  property  of  the  defendant,  and  the  plaintiff 


5Q6  DEMURRERS  IN  GENERAL. 

may  have  the  legal  capacity  to  sue,  yet  there  may  be 
another  action  pending  between  the  same  parties  for 
the  same  cause;  or,  foiwth,  there  may  be  a  'defect  or 
misjoinder.  of  parties  plaintiff  or  defendant.  The 
inquiry  whether  there  be  another  action  pending,  etc., 
can  rarely  be  raised  by  demurrer,  for,  in  most  instances, 
the  facts  disclosing  this  will  not  appear  on  the  face  of 
the  complaint,  and  hence  that  issue  must  be  presented 
by  the  answer.  But  whether  there  is  a  misjoinder  or 
defect  of  parties,  plaintiff  or  defendant,  is  a  question 
requiring  a  careful  consideration.  This  may  generally 
be  settled  by  the  inquiries:  "  Has  the  plaintiff  or  de- 
fendant an  interest  in  the  event  of  the  suit?"  "Will 
his  rights  be  adjudicated  upon  in  the  action  ?"  or,  "Will 
the  rights  of  another  person,  not  a  party  to  the  action, 
be  affected  in  the  disposition  of  the  cause  ?"  The  in- 
terest or  right  thus  to  be  affected  must  be  an  actual, 
existing  interest,  an  interest  which  any  judgment  of  the 
Court  would  nearly  or  remotely  affect.  A  mere  possi- 
ble interest  is  not  in  general  such  as  will  require  a  party 
to  be  joined  in  the  action.  When,  however,  the  title 
to  property  is  sought  to  be  determined  by  the  judg- 
ment or  decree  of  the  Court,  then  persons  possessing 
very  slight  or  remote  interests  should  be  made  parties, 
as  in  actions  of  partition,  the  foreclosure  of  mort- 
gage,, etc. 

6.  The  next  objection,  and  the  fifth  ground  of  de- 
murrer under  the  statute,  is,  "that  several  causes  of 
action  have  been  improperly  united."  For  instance,  an 
action  for  damages  for  personal  injury  cannot  be  united 
with  an  action  on  account;  nor  can  an  action  to  quiet 
title,  or  in  ejectment,  or  any  other  action  affecting 
real  property,  be  united  with  a  simple  assumpsit.  In 


DEMURRERS    IN    GENERAL.  597 

general,  under  the  liberal  provisions  of  our  statute, 
different  causes  of  action  may  be  united  when  they 
belong  to  the  same  class  or  species  of  injuries  or  wrongs, 
or  when  they  arise  out  of  the  same  transaction.  For 
examples,  consult  Vol.  i.,  p.  211,  et  seq. 

7.  But,  admitting  that  the  action  is  brought  in  the 
right  court,  that  the  parties  plaintiff  have  the  right  to 
sue,  and  that  it  is  brought  by  the  proper  parties,  and 
that  no  other  action  is  pending  between  these  parties, 
still,  the  sixth  ground  of  demurrer  under  the  statute, 
and  the  one  most  often  interposed,  is,  "That  the  com- 
plaint does  not  state  facts  sufficient  to  constitute  a 
cause  of  action."  Thus,  where  the  complaint  shows  upon 
its  face,  in  an  action  on  account,  that  it  accrued  more  than 
two  years  before  the  commencement  of  the  suit,  or  in 
an  action  of  ejectment,  a  seizin  and  ouster  are  alleged 
to  have  occurred  more  than  five  years  before  the  com- 
mencement of  the  action,  in  each  case  the  complaint 
would  fail  to  state  a  cause  of  action  because  of  the  bar 
of  the  Statute  of  Limitations.  '  The  instances  where  a 
plaintiff  would  fail  to  state  facts  sufficient  to  constitute 
a  cause  of  action  are  so  numerous  that  examples  seem 
unnecessary.  The  following  inquiries,  however,  may 
be  a  guide  to  the  practitioner  on  the  subject:  First, 
Does  the  complaint  show  that  the  plaintiff  has  suffered 
an  injury  ?  Second,  Is  it  an  injury  which  the  law  recog- 
nizes as  a  wrong,  and  for  which  it  provides  a  remedy  ? 
Third,  Is  the  defendant  liable  for  the  alleged  wrong 
done  ?  Foifrth,  If  the  defendant  is  liable,  to  what  extent 
is  he  liable,  and  what  will  be  the  legal  remedy  for  such 
injury  ?  These  questions  will,  in  general,  test  the 
validity  of  the  pleading.  Any  person  may  know  that 
an  answer  must  be  made  to  a  complaint,  but  it  fre- 


598  DEMURRERS  IN  GENERAL. 

quently  requires  the  most  careful  and  critical  thought 
to  tell  when  it  may  be  successfully  demurred  to.  The 
answer  puts  in  issue  the  facts,  while  the  demurrer  puts 
in  issue  the  law.  The  one  denies  the  allegations  of 
the  complaint;  the  other  admits,  but  avoids  them,  by 
affirming  that  no  wrong  was  done  the  plaintiff  by  the 
defendant.  By  wrong  is  meant  no  wrong  for  which  the 
law  affords  a  remedy. 

8.  The  seventh  and  last  ground  of  demurrer  pre- 
scribed by  our  statute  goes  more  to  the  manner  than 
the  matter  of  the  complaint,  namely,  that  the  complaint 
is  ambiguous,  unintelligible,   or   uncertain.     For   in- 
stance, a  complainant  might    have  a  perfect  cause  of 
action,  and  might  also  state  facts  in  his  pleading  "  suffi- 
cient to  constitute  a  cause  of  action,"  but  he  may  so 
intermjngle  them  with  extraneous  matter  that  the  com- 
plaint   would  be  meaningless;    in    other    words,  ''the 
allegations  of  the    complaint  should  be    so  clear  and 
pointed  that  defendant  may  know  what  he  is  charged 
with  and  what  he  must  admit  or  deny."     A  defendant, 
under  our  practice,  is  not  obliged  to  look  through  pages 
of  meaningless  sentences  to  find  out  the  idea  of  the 
pleader. 

MODE    OF    TAKING    OBJECTION. 
^ 

9.  By   the   former   chancery    practice,   the    proper 
mode  of  taking  advantage  of  any  ground  of  defense, 
apparent  from  the  bill  itself,  either  from  its  contents  or 
from  defect  in  its  frame,  or  in  the  case  made  by  it,  was 
by  demurrer,     (i  Mitf.  Eq.  PL  107;   i  Barb.   Ch.  Pr. 
105.)     The  difference  in  the  modern  practice    is  that 
objection   cannot  now  be  taken    by  demurrer  to   the 


DEMURRERS  IN  GENERAL.  599 

frame  or  form  of  the  bill;  the  remedy  is  by  motion  to 
make  definite.  (Howell  v.  Frazer,  i  Code  R.  (N.S.) 
270.)  Objections  by  demurrer,  may  be  taken  within 
the  time  •  prescribed  by  the  statute  for  answering 
the  complaint,  that  is  to  say:  First,  If  service  of  sum- 
mons is  had  in  the  county  where  the  action  is  brought, 
within  ten  days  after  such  service.  Second,  If  defendant 
is  served  out  of  the  county  in  which  action  is  brought, 
but  in  the  district,  twenty  days.  Third,  If  served  any- 
where else  in  the  State,  forty  days.  (See  Sec.  25,  Cal. 
Pr.  Act.}  If  service  is  had  by  publication,  the  defend- 
ant has  forty  days  to  answer,  after  the  period  for  pub- 
lication expires.  See  Sees.  30-31,  Cal.  Pr.  Act. 

10.  The  demurrer  shall  be  filed  with  the  Clerk,  and 
a  copy  thereof  served  on  the  adverse  party  or  his  attor- 
ney, if  the  adverse  party  or  his  attorney  live  within  the 
county  where  thje  action  is  pending.     (Cal.  Pr.  Act,  § 
38.)     Where  a  demurrer  to  the  complaint  is  put  in  and 
overruled,  and  the  defendant  then  answers,  the  answer 
is  a  waiver  of  the  demurrer.     (De  Boom  v.  Priestly,  i 
Cal.  206;  Brown  v.  Saratoga  R.R.  Co.,  4  E.  P.  Smith, 
495.)     And  a  demurrer  will  not  lie  after  answer  put  in; 
(Finch  v.  Purdon,  19  Abb.  Pr.  96;)  and  is  waived  by 
pleading  to  the  merits.     (Borada  v.  Inhabitants  of  Car- 
ondelet,  8  Mo.  644.)     The  omission  of  the  defendant  to 
join  in  a  demurrer  to  a  plea  is  a  waiver  of  that  plea. 
(Morsell  v.  Hall,  \$How.  U.S.  212.)     If  demurrers  are 
suffered  to  rest  for  three  years,  the  Court  may  then  over- 
rule them   in   its  discretion,  for  want  of  prosecution. 
Anderson  v.  Fisk,  36  Cal,  625. 

11.  A  statement  of  facts  in  a  demurrer  is  not  admis- 
sible.    The  only  office  of  a  demurrer  is  to  raise  issues 


6OO  DEMURRERS  IN  GENERAL. 

of  law  upon  the  facts  stated  in  the  pleading  'demurred 
to.  (Cook  v.  De  LaGuerra,  24  Cal.  239;  Brooks  v. 
Gibbons,  4  Paige,  374.)  If  it  requires  the  slightest 
statement  of  facts  to  make  the  defect  in  the  complaint 
apparent,  demurrer  will  not  lie.  .(Davy  v.  Betts,  23 
How.  Pr.  396;  Dillaye  v.  Wilson,  43  Barb.  261.)  The 
test  of  a  demurrer  is:  Does  it  require  any  facts  to  sus- 
tain it?  Struver  v.  Ocean  Ins.  Co.,  16  How.  Pr.  422. 

12.  Where  the  defendant  neglects  to  demur  to  a  de- 
fective declaration,  he  cannot  avail  himself  of  the  ob-. 
jection  at  the  trial,  but  will  be  put  to   his   motion   in 
arrest  of  judgment.     (Bury   v.  City  of  St.  Louis,    12 
Mo.  298;  Mullen  v.  Pry  or,  Id.  307.)     As  to  waiver  of 
objection  to  the  complaint  on  special  grounds  by  the 
omission  to  demur,  see   (Malone  v.   Stilwell,  i5   Abb. 
Pr.  421.)     A  demurrer  abandoned  after  service  of  an 
amended  pleading,  is  no  longer  a  part  of  the  record, 
and  will  be  struck  out  of  the  appeal  book  on  motion. 
(Brown  v.  Saratoga  R.R.  Co.,  4  E.  P.  Smith,  496.)     Or 
it  may  be  presumed  withdrawn.     (Sweeney  v.  Willing, 
7  Mo.  174;    Dickey  v.  Malechi,  Id.  177.)       In  a  case 
brought  upon  a   writ  of   error,    which   presented    the 
appearance  of  a  demurrer  upon  the  record  which  had 
not  been  disposed  of,  where  there  was  a  verdict  upon 
a  plea  of  the  general  issue,  and- a  judgment  rendered 
thereon,  the  Supreme  Court  presumed  that  the  demurrer 
had  been  either  withdrawn  or  overruled.     Townsend  v. 
Jemison,  7  How.  U.S.  706. 

13.  Notwithstanding  a  defendant   in   chancery   de- 
murs, and  it  is  overruled,  he  may  afterwards  insist  upon 
the  same  thing  by  his  answer.     (See  Crawford  v.  The 
"  William  Penn,"  3  Wash.  C.  Ct.  484.)     And  under  the 


DEMURRERS    IX    GENERAL.  6oi 

civil  law,  the  party  who  demurred  is  not  prevented  from 
contesting  the  facts  confessed  in  the  demurrer,  and 
compelling  the  opposite  party  to  prove  them.  (Craw- 
ford v.  The  "William  Penn,"  3  Wash.  C.  0/484.) 
This  is  the  modern  practice. 

\ 

WHAT   A    DEMURRER    ADMITS. 

14.  A  demurrer  admits,  for  the  purposes  of  the  argu- 
ment, the  facts  stated    in    the    complaint  to    be  true. 
(Tuolumne  Wat.  Co.  v.  Chapman,  8  Col.  392.)    But  only 
such  facts  as  are  issuable,  and  were  pleaded.     (Story's 
Eg.  PI.  §  452;  Branham  v.  Mayor  of  San  Jose,  24  Cal. 
602;  Commonwealth  etc.  v.  Commissioners,  37  Penn. 
277;   Hall  v.  Bartlett,  9  Barb.  297;  Clark  v.  Van  Du- 
zen,  3    C.  R.   219;  Acome   v.  American   Min.   Co.,  n 
How.  Pr.  26;   Bennion  v.  Davidson,  i   Horn  &  Hurl, 
48;  Freeman    v.  Frank,    10  Abb.  Pr.    370;    Cutler  v. 
Wright,  21   jV.K  472;  Sun  Mut.  Ins.  Co.  v.  Davis,  19 
Abb.  Pr.  214;  Greathouse  v.  Dunlap,  3  McLean  C.  Ct. 
303;  Lafleur  v.  Douglass,  i    Wash.    T.  215;  Commer- 
cial Bank  of  Manchester  v.  Buckner,  20  How.  U.S.  108; 
United  States  v.  Arnold,  i    Gall.  348;    Van  Doren  v. 
Tjader,    i   Nev.  380;   Griffing  v.  Gibb,    2  Black.  519; 
Foot  v.  Linck,  5  McLean,  616.)     It  admits  the  allega- 
tions of  the  bill,  for  the  purposes  of  a  motion  on  the 
bill.     Bayergue  v.  Cohen,  i  Me  All.  no. 

15.  Where  the  Court  intimates  that  conceding  the 
facts  to  be  true,  yet  the  plaintiff  could  not  recover,  and 
the  defendant  admits  the  facts  could  be  proved,  this  is 
deciding  the  case  as  on  demurrer,  or  as  on  motion  for 
nonsuit.     (Snodgrass  v.  Rickets,    13   Cal.  359;  Fabri- 
cotti  v.  Launitz,  i  Code  R.  (IV. S.)  121.)     But  an  admis- 
sion of  facts  by  a  demurrer  in  one  cause  is  not  evidence 


6O2  DEMURRERS    IN    GENERAL. 

of  those  facts  in  another  cause,  although  between  the 
same  parties.  (Auld  v.  Hepburn,  i  (Branch  C.  Ct.  122, 
1 66.)  So,  a  demurrer  does  not  admit  the  truth  of  any 
new  facts  not  appearing  in  the  original  pleading.  (Van 
Doran  v.  Tjader,  i  Nev.  380.)  And  it  never  admits 
the  law  arising  on  those  facts.  United  States  v.  Ar- 
nold, i  Gall.  348;  Hobson  v.  Me  Arthur,  3  McLean, 
241;  Bedel  v.  Stickels,  4  How.  Pr.  432;  Griggs  v.  St. 
Paul,  9  Minn.  246. 

WHEN   A    DEMURRER    LIES. 

1 6.  A  demurrer  lies  only  when  an  entire  pleading, 
that  is  an  entire  cause  of  action,  is  insufficient;  (i  Van. 
Santv.  184;)  as  a  part  of  a  cause  of  action  cannot 
be  demurred  to.  (Lord  v.  Vreeland,  15  Abb.  Pr.  122; 
S.C.  affirmed,  13  Id.  195;  Wait  v.  Ferguson,  14  Abb.  Pr. 
379;  Mattoon  v.  Baker,  24  How.  Pr.  329;  Hayden  v. 
Anderson,  17  Iowa,  158.)  So,  if  any  part  of  a  bill 
demurred  to  is  good,  demurrer  to  the  whole  cannot  be 
sustained.  6  Paige,  570;  Story's  Eq.  PI.  §  443;  Whit- 
ing v.  Heslep,  4  Cat.  327;  Young  v.  Pierson,  i  Cat.  448; 
Weavers.  Conger,  10  Cat.  233;  Martin  v.  Mattison,  8 
Abb.  Pr.  3 ;  Atwill  v.  Ferrit,  2  Blatchf.  39 ;  Marshall  v. 
Bouldin,  8  Mo.  244;  Peabody*z>.  Wash.  Mut  Ins.  Co., 
20  Barb.  342;  Butler  v.  Wood,  10  How.  Pr.  222; 
Cooper  'v.  Classon,  i  Code  R.  {N.S?)  347;  Sanza  v. 
Belcher,  3  Edw.  Ch.  117;  Livingston  v.  Story,  9  Pet. 
632;  Le  Roy  v.  Veeder,  i  John.  Ch.  417;  Laight  v. 
Morgan,  Id.  429;  Livingston  v.  Livingston,  4  John.  Ch. 
294;  Higinbotham  v.  Burnett,  5  Id.  184;  Parsons  v. 
Browne,  7  Paige,  351;  Griggs  v.  Thompson,  i  Geo.  Decis. 
146;  Hollsclan  v.  Johnston,  2  Id.  146;  Newberg  v. 
Garland,  31  Barb.  121;  Jacques  v.  Morris,  2  E.  D.  Smith, 


DEMURRERS    IN    GENERAL.  60^ 

o 

639;  Blount  e/..Garen,  3  Hey.  88;  Fancher  v.  Ingraham, 
6  Blackf.  1 39. 

17.  On  a  general  demurrer  (unless  for  misjoinder  of 
actions),  judgment   must  be  given  for  the  plaintiff,   if 
there  is  one  good  count  in  the  declaration.     4  Bos.  & 
Pul.  43;   Stoddard  v.  Treadwell,  26  Cat.  294;  Whitney 
v.  Crosby,  3  Cai.  89;   S.C.,  Col.  &  C.  Cas.   443;   Gid- 
ney  v.  Blake,  n  Johns.  54;  Martin  v.  Williams,  13  Id. 
264;  Monell  v.  Golden,  Id.  395;   Mumford  v.  Fitzhugh, 
1 8  Id.  457;   People  v.  Bartow,  6  Cow.  290;  Freeland  v. 
McCullough,    i   Den.  414;  Wrolfe  v.  Luyster,    i   Hall. 
146;  Ward  v.  Sackrider,  3  Cai.  263;  French  v.  Tuns- 
tall,    Hempst.    204;    McCue   v.    Corpor.    of   Wash.,  3 
CraniJi  C.  Ct.  639;   Brown  v.  Duchesne,  2  Curt.  C.  Ct. 
97;  Vermont  v.  Society  for  Prop,  of  Gosp.,  2  Paine  C. 
Ct.  545. 

1 8.  A  demurrer  should  be  interposed  only  to  the 
counts  badly  pleaded,  a  general  demurrer  to  the  whole 
will  be   had.      (Douglass  v.  Satterlee,    n   Johns..    16; 
Mercein  v.   Smith,   2   Hill.   210;    Gill  v.  Stebbins,    2 
Paine,  417.)     So,  in  covenant  where  several  breaches 
are  assigned,  some  of  which  are  sufficient  and  others 
not,  the  defendant  should  only  demur  to  such  as  are 
bad;  and  if  he  demur  to  the  whole  declaration,  judg- 
ment must  be  given  against  him.       (Gill  v.  Stebbins, 
2  Paine,  417.)     So,  a  demurrer  to  a  whole  complaint 
is    bad    if  one  of    the    plaintiffs    may  have  judgment 
separately.     (Peabody  v.  Wash.  Go.  Mut.  Ins.  Co.,  20 
Barb.  339.)     Where  a  complaint,   filed  to   compel   a 
partnership  account,  contained  sufficient  to  call  u£on 
defendants  for  an  accounting  as  to  a  particular  branch  of 
their  business,  but  was  in  other  respects    inartificially 


604  DEMURRERS  IN  GENERAL. 

drawn  and  insufficient,  and  a  demurrer  was  put  in  to 
the  whole  complaint:  Held,  that  the  demurrer  must  be 

overruled.     Young  v.  Pearson,  i  Cat.  448. 

• 

1 9.  For  where  a  demurrer  is  too  general,  it  will 

be  overruled.  (Young  v.  Pearson,  i  Cal.  448;  People 
v.  Morrill,  26  Cal.  361;  Whiting  v.  Heslep,  4  Cal. 
327;  Weaver  v.  Conger,  10  Cal.  233;  Stoddard  v. 
Treadwell,  26  Cal.  294.)  But  in  our  practice  this  is 
not  necessary  where  the  demurrer  is  interposed  on  the 
ground  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action.  If  a  demurrer  is  to  the 
whole  bill,  and  is  good  as  to  a  part,  but  bad  as  to  part, 
it  should  be  overruled.  (People  v.  Morrill,  26  Cal. 
360.)  For  a  demurrer  bad  in  part  is  bad  in9toto. 
Verplank  v.  Caines,  i  Johns.  C.  R.  57;  Le  Fort  v. 
Delafield,  3  Edw.  Ch.  32;  Thompson  v.  Newbin,  3 
Ired.  Ch.  338;  Russell  v.  Lanier,  A^Hey.  289;  Kimberly 
v.  Sells,  3  John.  C.  R.  467. 

20.  Where  the  complaint  counts  upon  two  promises, 
the  promise  to  pay  costs  and  damages,  and  the  prom- 
ise to  pay  the  value  of  the  use  and   occupation  of  the 
premises,  and  the  objections  taken  by  demurrer  to  the 
whole  complaint  were:  First,  That  the  complaint  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action; 
Second,  That  the  complaint  is  ambiguous,  unintelligible 
and   uncertain,  and  under  the  first  cause  a  multitude  of 
supposed  defects  were  specified,  and  under  the  last  none 
were  specified,  the  demurrer  was  properly  overruled. 
Murdock  v.  Brooks,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

\ 

WHEN    DEMURRER    WILL    NOT    LIE. 

2 1 .  The  mistake  of  the  pleader  in  setting  forth  the 


DEMURRERS  IN  GENERAL.  605 

facts  constituting  a  single  cause  of  action  in  two  sepa- . 
rate  statements,  some  facts  in  one  and  some  in  another, 
as  constituting  separate  causes  of  action,  does  not  ren- 
der the  pleading  demurrable.  (Hillman  v.  Hillman,  14 
How'.  Pr.  456;  see  Lackey  v.  Vanderbilt,  10  How.  Pr. 
155.)  Nor  will  a  demurrer  lie  to  a  complaint  for  the 
defect  of  not  separately  stating  two  or  more  causes  of 
action ;  they  being  such  as  might  be  united  in  one  com- 
plaint, if  properly  stated.  Moore  v.  Smith,  10  How. 
Pr.  61;  Harsen  v.  Bayatid,  5  Duer.  656;  Gooding  v. 
McAlister,  9  How.  Pr.  123;  Welles  z/.  Webster,  Id. 
251;  Robinson  v.  Judd,  Id.  378;  Peckham  v.  Smith, 
Id.  436;  Benedict  v.  Seymour,  6  Id.  198;  Waller  v. 
Raskan,  12/^28;  Cheney  v.  Fisk,  22  Id.  236;  Town- 
ship of  Hartford  v.  Bennett,  10  Ohio,  441;  Fickert 
v.  Brice,  22  How.  Pr.  195;  Dorman  v.  Kellam,  4  Abb. 
Pr.  202;  Woodbury  v.  Sackrider,  2  Id.  402;  Badger 
v  Benedict,  4  Abb.  Pr.  176. 

22.  Where  the  complaint  in  but  one  count  states 
facts  constituting  two  or  more  causes  of  action,  or  the 
relief  claimed  is  beyond  that  authorized  by  the  facts, 
the  remedy  is  by  motion  to  strike  out,  not  by  demurrer. 
(Fickert  v.  Brice,  22  How.  Pr.  194;  Dorman  v.  Kellam, 
4  Abb.  Pr.  202;  Cheney  v.  Fisk,  22  How.  Pr.  236; 
Lord  v.  Vreeland,  13  Abb.  Pr.  195;  24  How.  Pr.  316.) 
So,  if  some  'of  the  breaches  in  a  count  demurred  to  are 
good,  a  demurrer  will  not  lie.  (Hayden  v.  Sample,  10 
Mo.  215;  State  v.  Campbell,  10  Mo.  724;  Glover  v. 
Tuck,  24  Wend.  153;  Adams  v.  Willoughby,  6  Johns. 
65;  Martin  v.  Williams,  13  Id.  264;  People  v.  Russell, 
4  Wend.  570;  Though  separate  demurrers  might  be 
interposed  to  the  several  causes  of  action  contained  in 
a  complaint.  Ogdensburg  Bk.  v.  Paige,  2  Code  ^.75. 


606  DEMURRERS  IN  GENERAL. 

2  3.  What  a  demurrer  to  a  bill  in  equity  is,  and  why 
it  cannot  be  sustained  where  the  facts,  as  stated  on  the 
face,  of  the  bill,  entitle  plaintiffs  to  relief,  (n  Barb.  293; 
8  How.  Pr.  177;  i  Duer,  707;  Id.  243;  see  Griffing^. 
Gibb,  2  Black.  519.)  If  the  facts  stated  in  a  complaint 
constitute  a  valid  and  sufficient  cause  of  action,  though 
other  and  unnecessary,  immaterial,  or  redundant  state- 
ments be  contained  in  it,  a  demurrer  will  not  lie.  (Loo- 
mis^.  Soule,  i  Minn.  177;  Bishop  v.  Edmiston,  16  Abb. 
Pr.  466;  School  Dist.  v.  Pratt,  17  Iowa,  16.)  Such  ob- 
jections are  remedied  by  motion.  Byington  v.  Robert- 
son, 17  Iowa,  562;  Morse  v.  Oilman,  16  Wis.  504; 
Cheeseborough  v.  N.Y.  and  Erie  R.R.  Co.,  13  How.  Pr. 
557;  Graham  v.  Camman,  Id.  360;  People  ex  rel.  Crane 
v.  Ryder,  2  Kern.  433. 

23.  In    New   York,   a  demurrer   will    not   lie   for 
irrelevancy  or  redundancy.     (Consult  Village  of  War- 
ren v.  Phelps,   30    Barb.  646;    Watson  v.  Husson,   i 
Duer,  242;    Spies    v.  Acces.   Trans.  Co.,  5    Id.  663; 
Roeder  v.  Ormsby,    13  Abb.  Pr.  334;   Seely  v.  Engell, 
3  Kern.  542;    Smith  v.  Greening,  2   Sand.  702;    Rich- 
ards v.  Edick,  1 7  Barb.  261;    Graham  v.  Camman,  5 
D^ler,  697;  Hammond  v.  Huds.  Riv.  Iron  and  Machine 
Co.,  20  Barb.  386;  Cheeseborough  v.  N.Y.  and  Erie 
R.R.  Co.,  26 Id.  9;  Lee  B'k  v.  Kitching,  1 1  Abb.  Pr.  435; 
Warrens.  Phillips,  ^oBarb.  647;  Meyer  vl  Van  Collem, 
28  Barb.  230;  see  Anon.,  1 1  Abb.  Pr.  231.)     So,  it  will 
not  lie  for  argumentativeness.      Brown  v.  Richardson, 
20  N.Y.  474;  Zabriskie  v. 'Smith,  3  Kern.  330;   Prin- 
dle  v.  Caruthers,   15  N.Y.  431;     Judah  v.  Vincennes 
University,  23  Ind.  273. 

24.  A  mere  clerical  error  in  a  complaint,  e.g.,  the 


DEMURRERS    IN    GENERAL.  607 

omission  in  a  complaint  against  two  defendants  of  the 
letter  "  s"  in  the  word  "defendants,"  will  not  sustain  a 
demurrer.  (Chamberlain  v.  Kaylor,  2  E.  D.  Smith 
C.  P.  ft.  134;  Fickert  v.  Brice,  22  How.  Pr.  194.)  Or 
if  the  Christian  name  of  one  of  the  plaintiffs  does  not 
appear,  it  is  no  ground  of  demurrer.  Nelson  v.  High- 
land, 13  Cat.  74. 

25.  If  the  complaint  shows  damage,  it  is  not  a  ground 
of  demurrer  that  it  does  not  show  the  amount  of  dam- 
ages.    The  amount  of  damages  is  never  the  subject  of 
demurrer.     (Pevey  v.  Sleight,    i    Wend.  518;   Hecker 
v.  DeGroot,  15  How.  Pr.  314;  Mead  v.  Mali,  14  How. 
Pr.  R.  347.)     A  demurrer  does  not  raise  the  objection 
that  the  complaint  does  not  show  a  cause  of  action  for 
so  large  a  sum  as  that  demanded.     Though  it  seems  the 
demurrer  in  such  case  is  not  frivolous.    (Witherhead  v. 
Allen,  28  Barb.  661.)     In  an  action  for  the  breach  of  a 
contract,  the  want  of  any  averment  of  special  damage 
cannot  be  reached  by  a  demurrer.     Such  averment  is 
only  necessary  where  the  right  of  action  itself  depends 
upon  the  special  injury  received.     For  the  breach  of 
contract  an  action  lies,  though  no  actual  damage  be  sus- 
tained.     McCarthy  v.  Beach,  10   Cal.  461;   Hewitt  v. 
Mason,  24  How.  Pr.  366. 

26.  The  objection  that  a  deed  was  not  signed  and 
acknowledged  by  the  wife  of  the  plaintiff  is  not  a  cause 
of  demurrer.       (Kays  v.  Phelan,    19  Cal.  128.)       Nor 
that  a  bond  signed  by  two,  has  but  one  seal  for  the 
party  who  has  not  actually  signed  and  sealed  the  bond, 
may   specifically   plead   non  est  factum,   under   oath. 
(Smith  v.  Hart,  i  Mo.  273.)     Although  such  plea  would 
not  avail  under  the  California  Decisions. 


608  DEMURRERS    IN    GENERAL. 

27.  A  demurrer  to  evidence  is  not  a  good  plea  to  a 
bill  in  equity,  on  the  ground  of  its  extending  beyond 
the  allegations  contained  in  the  bill.       (Blackburn  v. 
Stannard,  5  Law  Rep.  250.)     So  the  insertion  of  inter- 
rogations in  a  complaint,  after  the  mode  of  a  bill  of  dis- 
covery, is  not  a  ground  for  demurrer.     Bank  of  British 
North  America  v.  Suydam,  6  How.  Pr.  379;    S.C.,  i 
Code  R.  (N.S.)  325. 

28.  It  cannot  be  objected  on  demurrer  to  a  declara- 
tion,  alleging   fraudulent   misrepresentations,  that  the 
representations  were  made  as  to  a  matter  of  opinion. 
(Whitton  v.  Goddard,  36  Vt.  730.)     A  demurrer  to  a 
bill,  which  contains  allegations  of  fraud,  and  strong  cir- 
cumstances of  equity,  must  be  overruled.     In  such  case, 
the  defendant  must  answer  to  the  fraud.     Burnley  v. 
Town  of  Jeffersonville,  3  McLean,  336. 

29.  Nor  is  the  omission  of  pledges  of  prosecution  in 
the  complaint  a  ground  for  demurrer,  they  being  mere 
matters  of  form.       (Baker  v.  Phillips,   4  Johns.    190.) 
The  want  of  affidavit  to  a  plea  is  not,  in  Missouri,  a 
ground  for  demurrer.     (Parker  v.  Simpson,  i  Mo.  539.) 
The  objection  to  the  want  of  verification  of  the  com- 
plaint, where  verification  is  required  by  statute,  must 
be  taken  either   before  answer   or  with   the   answer. 
(Greenfield  v.  Steamer  "  Gunnell,"  6  Cat.  67.)     It  has 
been  held  that  it  should  be  taken  by  motion  when  the 
respondents  appeal.     Woodworth  v.  Edwards,  3  Woodb. 

&  M.    120. 

OBJECTIONS    TO    PRAYER    FOR    RELIEF. 

30.  Objections  to  the  prayer  of  a  complaint  cannot 
be  taken  by  demurrer.     If  the  specific  relief  asked  can- 


DEMURRERS  IN  GENERAL.  609 

not  be  granted,  such  relief  as  the  case  stated  in  the  bill 
authorizes  may  be  had  under  the  clause  in  the  prayer  for 
general  relief,  and  even  in  the  absence  of  such  clause 
when  an  answer  is  filed.  The  facts  in  the  complaint, 
and  not  the  prayer,  settle  the  relief  to  be  granted. 
(Rollins  v.  Forbes,  10  Cat.  299;  People  v.  Morrill,  26 
Cat.  336;  cited  in  Althof  v.  Conheim,  Cal.  §up.  Ct., 
Jul.  T.,  1869;  Stewart  v.  Hutchinson,  29  How.  Pr. 
1 8 1.)  Nor  will  demurrer  lie  to  the  demand  for  mare 
relief  than  the  plaintiff  is  entitled  to.  Rollins  v.  Forbes, 
10  Cal.  299;  Andrews  v.  Shaffer,  12  How.  Pr.  443; 
Beale  v.  Hayes,  5  Sand.  640;  Bishop  v.  Edmiston,  16 
Abb.  Pr.  466:  Emery  v.  Pease,  20  N.  Y.  62;  School 
Dist.  v.  Pratt,  17  Iowa,  16;  Hecker  v.  De  Groot,  15 
How.  Pr.  315;  Moran  v.  Anderson,  i  Abb.  Pr.  288; 
Lord  v.  Vreeland,  24  How.  Pr.  316;  13  Abb.  Pr.  195; 
Meyer  v.  Van  Collem,  28  Barb.  230;  Moses  v.  Walker, 
2  Hilt.  536;  St.  John  v.  Peirce,  22  Barb.  371;  Stuy- 
vesant  v.  Mayor  of  N.Y.,  n  Paige,  415;  to  the  same 
effect,  Witherhead  v.  Allen,  28  Barb.  66 1 ;  Hess  v.  Buf- 
falo and  Niagara  Falls  R.R.  Co.,  29  Barb.  391 ;  Roeder 
v.  Ormsby,  13  Abb.  Pr.  334;  S.C.,  22  How.  Pr.  270; 
Woodgate  v.  Fleet,  9  Abb.  Pr.  222. 

31.  If  the  complaint  shows  that  the  plaintiff  has  a 
cause  of  action,  and  that  he  is  entitled  to  some  relief, 
the  question  as  to  what  kind,  or  how  much  relief  shall 
be  granted  to  him,  cannot  be  made  on  demurrer.  (Poett 
v.  Stearns,  25  Cal.  226.)  But  if  the  complaint  does 
not  state  facts  sufficient  to  enable  the  plaintiff  to  recover 
any  part  of  the  relief  demanded,  it  is  demurrable,  though 
he  would  from  the  facts  be  entitled  to  other  relief.  Wal- 
ton v.  Walton,  42  Barb.  203;  S.C.,  20  How.  Pr.  347; 
Anon.,  ii  How.  Pr.  231. 

39 

\ 


6lO  DEMURRERS  IN  GENERAL. 

32.  A  demurrer  to  a  complaint,  on  the  ground  that 
it  seeks  a  remedy  at  law,  and  also  seeks  for  equitable 
relief,  is  bad.      (Gates  v.  Kieff,  7  Cat.  125;  Marius  v. 
Bicknell,  10  Id.  224;  Weaver  v.  Conger,  Id.  237;  Rol- 
lins v.  Forbes,  Id.  300.)     A  demurrer  to  a  bill  in  equity 
alleging  that  the  relief  can  be  had  at  law,  will  not  lie 
where  the  bill  charges  fraud,  and  prays  relief  against  a 
judgment  at  law,  and  a  sale  under  it.     Shelton  v.  Tiffin, 
6  Maw.  U.S.  163. 

GENERAL   DEMURRER. 

33.  In  Pennsylvania  it  has  been  held  that  a  general 
demurrer   is    only  for  defects  of  substance;  a  special 
demurrer  for  defects  of  form,  which  must  be  speci- 
ally assigned.     (Commonwealth  v.  Cross  Cut  R.R.,  53 
Penn.  62.)     A  general  demurrer,  assigning  reasons  why 
the  plaintiff  should  not  recover,  must  be  considered  and 
treated  as.  a  special  demurrer.    Tyler  v.  Hand,  7  How- 
ard U.S.  573. 

34.  On  demurrer,  the  Court  should  not  pay  any 
attention  to  forms,  if  it  can  find  in  the  complaint  any 
allegations  which,  under  any  view  of  them,  may  give 
the  plaintiff  a  right  to  recover.     (Wilder  v.  McCormick, 
2  Blatchf.  C.  Ct.  31;  Butterworch  v.  O'Brien,  39  Barb. 
192;  S.C.,  24  Howard  Pr.  438.)    Or  if  the  complaint 
contains  the  elements  of  a  cause  of  action,  however 
inartificially  it  may  be  stated,  and  if,  on  analyzing  the 
facts  disclosed,  the  whole  or  any  part  of  them  can  be 
resolved  into  a  cause  of  action,  the  demurrer  should  be 
overruled.     People  v.  Mayor  of  N.Y.,  28  Barb.  240; 
S.C.,    8   Abb.    Pr.    7;    Buzzard    v.    Knapp,    12    How. 
Pr.  504. 


DEMURRERS  IN  GENERAL.  6ll 

35.  If  the  declaration  does  not  set  forth  a  proper 
case,  and  in  a  correct  form,  the  defendant  may  avail  him- 
self  of  these  defects  on  demurrer;    but  the  want  of 
proper  averments  in  the  declaration  cannot  be  made  the 
ground  of  a  nonsuit.     (Bas  v.  Steele,  Pet.  C.  Ct.  406.) 
For  defects  in  mere  matters  of  form  in  a  pleading,  the 
adverse  party  should  interpose  a  special  demurrer.     A 
general  demurrer  will  not  in  general  reach  them.     (Chil- 
dress  v.  Emory,  8  Wheat  S.  Ct.  642 ;  Christmas  v.  Rus- 
sell, 5   Wall.  U.S.  290;  compare  Lockington  v.  Smith, 
i  Pet.  C.  Ct.  466.)   But  these  questions  are  regulated  by 
the  decisions  of  the  courts  in  the  several  states,  and  the 
statutes  in  force. 

36.  A  general  demurrer  to  a  plea  of  fraud  in  obtain- 
ing the  judgment  in  suit  is  insufficient  where  the  objec- 
tion intended  to  be  raised  is  that  the  plea  does  not  state 
the  particulars  of  the   fraud  relied   upon;    this  being 
matter  of  form.     Christmas  v.  Russell,  5  Wall.  U.S.  290. 

SPECIAL     DEMURRERS. 

37.  A  demurrer  assigning  special  causes  is  to  be 
regarded  as  a  special  demurrer,  although  it  may  contain 
a  general  assignment.    (St.  Bt.  "  Reveille"  v.  Case,  9  Mo. 
498.)     At  common  law  and  in  the  old  equity  practice, 
a  special  demurrer  should  point  out,   specifically,   by 
paragraph,  page,  or  folio,  or  other  mode  of  references, 
the  parts  of  the  bill  to  which  it  is  intended  to  apply. 
(2  Ves.  &  B.  118;  Id.  121;  2  Sch.  &  Lef.  199;  Story 
Eq.    Plead.  §  457;  Atwill   v.  Ferritt,   2   Blatchf.    39; 
Jarvis  v.  Palmer,  n  Paige,  650;  Stuyvesant  v.  Mayor 
etc.,  Id.  415;  Mathews  v.  Beach,  4  Seld.  173;  Ruypers 
v.  Ref.  Dutch  Church,  6  Paige,  57. 


6l2  DEMURRERS  IN  GENERAL. 

38.  It  must  specify  the  grounds  upon  which  any  of 
the  objections  to  the  complaint  is  taken.  (Stat.  of  Ore- 
gon, §  67;  Harper  v.  Chamberlain,  n  Abb.  Pr.  234.) 
and  if  it  omit  such  specifications,  it  may  be  disregarded. 
(Sec.  41,  Cat.  Pr.  Act;  N.Y.  Code,  §  145.)  This  must 
be  done  in  all  cases;  (Commonwealth  v.  Cross  Cut  R.R. 
Co.,  53  Penn.  62;)  except:  First,  When  objection  is 
raised  to  the  jurisdiction  of  the  court;  and,  Second, 
When  the  ground  is  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action.  (Kent 
v.  Snyder,  30  Cat.  666;  see  Annabal  v.  Hunter,  6  How. 
Pr.  255;  Durkee  v.  Saratoga  R.R.  Co.,  4  Id.  226; 
Getty  v.  Hudson  Riv.  R.R.  Co.,  8  Abb.  Pr.  1*77; 
Glenny  v.  Hitchings,  2  Code  Rep.  56;  Grant  v.  Lasher, 
Id.  2;  Hunter  v.  Frisbee,  Id.  59;  Hyde  v.  Conrad,  5 
How.  Pr.  112;  Hinds  v.  Tweddle,  7  Id.  278;  Haire  v. 
Baker,  i  Seld.  163;  Johnson  v.  Wetmore,  12  Barb. 
433;  Skinner  v.  Stuart,  13  Abb.  Pr.  457;  Swift  v.  De 
Witt,  i  Code  Rep.  2  5 ;  Purdy  v.  Carpenter,  6  How.  Pr. 
361 ;  Viburt  v.  Frost,  3  Abb.  Pr.  120;  Hobart  v.  Frost, 
5  Duer,  672;  Wilson  v.  JVJayor  of  New  York,  6  Abb. 
Pr.  6;  Powers  v.  Ames,  9  Minn.  178;  Dorman  v. 
Ames,  Id.  180;  Nash  v.  Smith,  6  Conn.  421. 

39.  A  special  demurrer  is  distinguished  from  a  gen- 
eral demurrer  by  pointing  out  specially  the  causes  for  it. 
(Steamboat  "Reveille"  v.  Case,  9  Mo.  498;  Jackson  v. 
Rundlet,  i  Woodb.  &  M.  381.)  As  to  when  it  lies, 
and  its  effect,  see  (Whetcroft  v.  Dunlop,  i  Cranch  C. 
Ct.  5;  Vowell  v.  Lyles,  Id.  428;  McCue  v.  Corporation 
of  Wash.,  3  Id.  639;  Malone  v.  Stilwell,  15  Abb.  Pr. 
421;  Nellis  v.  De  Forest,  16  Barb.  65;  Chandler  v. 
Byrd,  Hempst.  222;  Cage  v.  Jeffries,  Id.  409;  United 
States  v.  White,  5  Id.  368. 


DEMURRERS  IN  GENERAL.  613 

40.  A    demurrer  to  two  counts    m^y  be  sustained 
as  to  one,  and  judgment  be  entered  on  the  other  against 
defendant.     (Barber  v.  Cazalis,  30  Cal.  92.)     But  a  de- 
murrer for  a  misjoinder  of  counts,  must  be  to  the  whole 
declaration,      (i    Chitt.  PL   180;  Ferris  v.  N.  A.  Fire 
Ins.  Co.,    i    Hill,  71.)     And   the   cause  of    demurrer 
must  be  specially  assigned.      Owsley  v.  Montgomery 
R.R.  Co.,  i  Ala.  485. 

CAUSES  OR  GROUNDS  FOR  DEMURRER. 

41.  There  are  six  (now  seven)  causes  for  which  a 
demurrer  may  be  interposed,  under  Section  forty  of  the 
Code.    Unless  a  ground  of  demurrer  be  included  under 
one  or  more  of  such  causes,  it  cannot  be  sustained. 
(Hentsch  v.  Porter,  10  Cal.  555;   Harper  v.  Chamber- 
lain, ii  Abb.  Pr.  232.)     A  defect  which  will  defeat,  the 
plaintiffs  present  right  to  recover,  in  whole  or  in  part, 
is    a   good   ground  of  demurrer.     Hentsch  v.  Porter, 
10  Cal.  555. 

42.  A    demurrer   will    lie    only    when    one  of  the 
several  grounds  of  demurrer  is  apparent  on  the  face  of 
the    complaint.      (Hentsch    v.    Porter,    10    Cal.    555; 
Simpson  v.  Loft,   8  How.  Pr.  234;  Getty  v.  Hudson 
Riv.  R.R.  Co.,  8  How.  Pr.   177;  Wilson  v.  Mayor  of 
N.Y.,  6  Abb.  Pr.6;  4  E.  D.  Smith,  675;   15  How.  Pr. 
500;    Coe  v.   Beckwith,    31    Barb.  339;    Mayberry  v. 
Kelly,  i  Kansas,  116;  Union  Mut.  Ins.  Co.  v.  Osgood, 
i  Duer,  707;  Aurora  v.  Cobb,  21  Ind.  492;  Kenworthy 
v.  Williams,    5   Id.  375;   Davy  v.  Betts,   23  How.  Pr. 
396;   1 6  Abb.  Pr.  466;  Dillaye  v.  Wilson,   43  Barb. 
261;  Bell   v.  Mayor  of  Vicksburg,  23  How.  U.S.  443; 
Amory  v.  McGregor,  12  Johns.  287;  Powers  v.  Ames, 


614  DEMURRERS  IN  GENERAL. 

9  Min.  178;  Dprman  v.  Ames,  Id.  180.)    And  defend- 
ant is  confined  to  the  objections  specified.     Loomis  v. 
Tifft,  1 6  Barb.  541. 

43.  The  demurrer  is  good  if  it  assigns  the  grounds 
of  objection    substantially  as    they  are  defined  in  the 
statute.    (Lagow  v.  Neilson,  10  Ind.  183;  DeWitt  ads. 
Swift,  3  How.  Pr.  280.)     And  unless  the  objection  to 
the  complaint  be  stated  under  one  of  the  seven  causes 
of  demurrer,  it  cannot  be  sustained.   Hentsch  v.  Porter, 

10  Cal.  555;  Haire  v.  Baker,  i  Seld.  363;  Simpson  v. 
Loft,  8  How.  Pr.  235;  Beale  v.  Hayes,  5   Sand.  640; 
Harper  v.  Chamberlain,  n  Abb.  Pr.  234. 

44.  In  New  York,  in  all  other  cases  than  for  defect 
of  parties  or  want  of  jurisdiction,  a  statement  of  the 
grounds  of  objection  in  the  mere  words  of  the  subdivi- 
sion under  which  the  demurrer  is  drawn,  is  all  that  is 
essential.     (Ellison  v.  Halleck,   6    Cal.  386;    Getty  v. 
Hudson  River  R.R.  Co.,  8  How.  Pr.   177;  Hulburt  v. 
Young,  13  Id.  413;  Haire  v.  Baker,  5  N.Y.  357;  Paine 
v.  Smith,  2  Duer,  298;  De  Witt  ads.  Swift,  3  How.  Pr. 
280;  Durkee  v.  Saratoga  and  Washington   R.R.  Co., 
4  Id.  226;  Hyde  v.  Conrad,  5  Id.ii2',  White  v.  Brown, 
14  Id.  282;  Johnson  v.  Wetmore,  12  Barb.  433;  Hoog- 
land  v.  Hudson,  8  How.  Pr.  343;   Spear  v.  Downing, 
34  Barb.  522.)     The  following  cases  to  the  contrary 
are  deemed  overruled:    Purdy  v.  Carpenter,  6  How. 
Pr.  361 ;   Hinds  v.  Tweddle,  7  Id.  278;  Grant  v.  Lasher, 
2  Code  R.  2;   Hunter  v.  Frisbee,  Id.  59;  and  see  Loomis 
v.  Tifft,    1 6    Barb.    514;  Skinner   v.  Stuart,    13    Abb. 
Pr.  442. 


CHAPTER    II. 

FORMS    OF    DEMURRERS. 

No.  542. 

i.     Demurrer  to  Some  of  'the  Alleged  Causes  of  Action. 
[TITLE.] 

The  defendant  demurs  [or  the  defendants,  naming 
them,  if  only  a  part  of  them  join,  demur]  to  the  first 
[or  second,  or  other  count  of  the  complaint] ,  upon  the 
ground: 

I.    \_State  ground  of  demurrer. ,] 

1.  Several  Causes  of  Action. — If  a  complaint  containing 
several  causes  of  action  is  demurred  to,  on  the  ground  that  the  several 
coutns  do  not  state  facts  sufficient  to  constitute  a  cause  of  action,  the 
demurrer  must  be  overruled,  unless  all  the  statements  are  insufficient. 
Martin  v.  Mattison,  8  Abb.  Pr.  3;  Butler  v.  Wood,  10  How.  Pr.  222; 
Newbery  v.  Garland,  31  Barb.  121;  Jacques  v.  Morris,  2  E.  D.  Smith, 
639;  Cooper  v.  Classon,  i  C.  R.  (N.S.)  347;  Townsend  v.  Jemison,  7 
How.  U.S.  706. 

JVo.  543. 

ii.    On  the  Ground  of  Want  of  Jurisdiction. 

The  defendant  demurs  to  the  complaint  filed  herein, 
and  for  cause  of  demurrer  alleges: 

I.    That  the  Court  has  no  jurisdiction  of  the  person  of 
the  defendant  [or  of  the  subject  matter  of  the  action— 
state  wky.~\ 


6l6  FORMS    OF    DEMURRERS. 

2.  Definition  of  Terms. — The  meaning  of  the  clause  "  that  the 
Court  has  no  jurisdiction  of  the  person"  is  that  the  person  is  not  subject 
to  the  jurisdiction  of  the  Court,  and  not  that  the  suit  has  not  been  regu- 
larly commenced.     If  the  suit  has  not  been  regularly  commenced,  the 
remedy  of  the  defendant  is  by  motion  against  the  irregularity.     (Nones 
v.  Hope  Mut.  Life  Ins.  Co.,  8  Barb.  541.)   The  meaning  of  subdivision 
first  is  that  the  person  is  not  subject  to  the  jurisdiction  of  the  Court. 
Nones  v.  Hope  Mut.  Life  Ins.  Co.,  5  How.  Pr.  96;  3  Code  Rep.  161. 

3.  Demurrer  Lies. — It  is  provided  by  Section  40  of  our  Practice 
Act  that  defendant  may  demur  to  the  plaintiff's  complaint  within  the 
time  required  by  the  summons  to  answer,  when  either  one  of  the  fol- 
lowing defects  appear  upon  the  face  of  the  complaint:  First,  Want  of 
jurisdiction  of  the  person  of  the  defendant  or  the  subject  of  the  action. 
If,  therefore,  it  appears  upon  the  face  of  the  complaint  "  that  the  Court 
has  no  jurisdiction  of  the  person  of  the  defendant  or  the  subject  of  the 
action,"  a  demurrer  will  lie  and  be  sustained.     In  the  case  of  (Doll  v. 
Feller,  16  Cal.  432),  it  was  fold  that,  "a  demurrer  to  the  jurisdiction  of 
the  Court  only  lies  where  the  want  of  such  jurisdiction  appears  affirma- 
tively upon  the  face  of  the  complaint.     In  a  court  of  limited  and  special 
jurisdiction  the  rule  is  otherwise."   See  Wilson  v.  Mayor  of  New  York, 
6  Abb.  Pr.  6;  15  How.  Pr.  500;  Kcenig  v.  Nott,  8  Abb.  Pr.  384. 

4.  Jurisdiction. — A  justice's  court  is  an  inferior  court,  and  its 
jurisdiction  must  be  shown  affirmatively  by  a  party  relying  upon  or 
claiming  any  right  under  its  judgments.     (Jolley  v.  Foltz,  34  Cal.  321.) 
Where  an  inferior  tribunal,  as  the  Board  of  Land  Commissioners,  has 
once  acquired  jurisdiction  of  a  matter,  its  subsequent  proceedings  cannot 
be  collaterally  questioned  for  mere  error  or  irregularity.      Bernal  v. 
Lynch,  36  Cal.  135. 

5.  Jurisdiction  of  Person. — There  are  two  modes  of  acquiring 
jurisdiction  of  the  person:  First,  By  personal  service  of  the  summons, 
and  copy  of  complaint;  and,  Second,  By  constructive  service,  or  by  what 
is  commonly  called  publication  of  summons.      (Hahn  v.  Kelley,  34 
Cal.  391.)     Where  S.  and  B.  admitted  "  due  service"  in  an  action 
against  them  and  others,  the  Court  thereby  acquired  jurisdiction  of  them. 
Sharp  v.  Brunnings,  35  Cal.  528. 

6.  Nuisance — Action   Premature. — Plaintiffs  owned  certain 
mining  claims  and  quartz  lodes  on  the  banks  of  a  stream,  above  the  mill 
and  dam  of  the  defendant.     Defendant  commenced  raising  his  dam 


FORMS    OF'   DEMURRERS. 

two  feet  higher.  Plaintiff  brought  suit,  alleging  the  addition  of  two  feet 
as  a  nuisance.  Held,  that  the  action  was  premature,  and  demurrer  sus- 
tained. Harvey  v.  Chilton,  n  Cal.  114. 

7.  Power  of  Determination. — The  court  whose  jurisdiction  is 
impeached  has  power  to  determine  the  question  whether  it  possesses  it 
or  not.     King  v.  Poole,  36  Barb.  242. 

8.  Several  Causes  of  Action. — Where  there  are  several  causes 
of  action,  but  of  one  of  them  the  court  has  no  jurisdiction,  the  demurrer 
must  be  to  that  one,  and  in  this  form,  and  not  to  the  whole  complaint,  as 
for  a  misjoinder  of  actions.     Cook  v.  Chase,  3  Duer,  643. 

9.  Statement  of  Grounds. — A  demurrer  on  the  ground  "that 
the  Court  has  no  jurisdiction  either  of  the  person  of  the  defendants  or  of 
the  subject  of  the  action,"  and  "  that  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,"  is  sufficiently  explicit  under 
the  rule  of  construction  adopted  by  the  courts  of  this  State.     Elissen  v. 
Halleck,.6  Cal.  386;  Willis  v.  Farley,  24  Cal.  491;  Kent  v.  Snyder,  30 
Cal.  666. 

No.  544- 

iii.    On  the  Ground  of  Want  of  Capacity  to  Sue. 
[TITLE.] 

The  defendant  demurs  to  the  complaint  filed  herein, 
and  for  cause  of  demurrer  alleges: 

That  the  plaintiff  has  no  legal  capacity  to  sue.  [State 
reasons  wky.~\ 


10.  Company — Membership. — The  failure  to  aver  member- 
ship in  a  company  in  the  body  of  the  complaint  is  a  ground  for  demur- 
rer.    Tolmie  v.  Dean,  Wash.  Terr.  61. 

11.  County. — A  county  has  legal  capacity  to  sue.     (Placer  Co.  v. 
Asten,  8  Cal.  305.)      The  statute  provides  that  no  person  shall  sue  a 
county,  unless  the  claim  has  been  first  presented  to  the  Board  6f  Super- 
visors, and  been  by  them  rejected;  this  fact  must  appear  in  the  com- 
plaint, or  it  is  demurrable.     McCann  v.  Sierra  County,  7  Cal.  123. 


618  FORMS  OF  'DEMURRERS. 

12.  Corporation. — The  omission  on  the  part  of  a  corporation 
plaintiff  to  show'  their  incorporation  cannot  be  reached  by  a  general 
demurrer,  based  upon  the  ground  that  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action.    That  the  plaintiff  has  not  legal 
capacity  to  sue  is  made  a  ground  for  special  demurrer,  and  must  there- 
fore be  specially  assigned.     (Bank  of  Lowville  v.  Edwards,  1 1  How. 
Pr.  216.)   Where  a  corporation  sues,  it  must  show  how  it  was  created ; 
without;  this,  there  is  a  fatal  omission  of  one  of  the  material  elements  of 
a  good  cause  of  action.     Johnson  v.  Kemp,  n  How.  Pr.  186. 

13.  Defect  Must  be    Apparent. — Ground  of  demurrer  must 
appear  from  allegation  as  made,  not  from  want  of  allegation.     Phenix 
Bank  of  N.Y.  v.  Darnell,  41  Barb.  571. 

14.  Demurrer  Lies. — There  are  many  instances  where,  unless 
plaintiff  shows  his  legal  capacity  to  sue,  a  demurrer  will  lie  under  this 
subdivision,  and  the  facts  showing  the  former  are  not  facts  constituting 
the  cause  of  action.     Bank  of  Lowville  v.  Edwards,  n  How.  Pr.  216; 
Connecticut  Bank  v.  Smith,  9  Abb.Pr.  168;    Vibert  v.  Frost,  3  Abb. 
Pr.  120;  Bank  of  Havana  v.  Wickham,  7  Abb.  Pr.  134;    Myers  v. 
Machado,  6  Abb.  Pr.  198;  Hobart  v.  Frost,  5  Duer,  972. 

15.  Foreign  State. — Demurrer  allowed  to  a  bill  brought  by  "  the 
United  States  of  America,"  on  the  ground  that  a  foreign  state  is  not 
allowed  to  sue  in  a  court  of  equity,  without  putting  forward  some  public 
officer  on   whom    process  may  be    served,  and   who   can   be    called 
upon  to  give  discovery  on  a  cross  bill,  United  States  of  America  v. 
Wagner,  Law  Rep.  3  Eq.  724. 

16.  Guardian  of  Infant. — A  complaint  omitting  to  allege  the 
appointment  of  a  guardian  for  an  infant  plaintiff  is  impeachable  under 
this  subdivision.     Grantman  v.  Thrall,  44  Barb.  173. 

4 

17.  Note  Held  in  Trust. — A  plaintiff  has  no  legal  capacity  to 
sue  in  an  action  on  a  promissory  note,  when  it  appears  on  the  face  of 
the  complaint  that  plaintiff  holds  the  note  as  collateral  security  for  a  debt, 
under  a  trust  to  sell  it,  but  with  no  power  to  sue.     (Nelson  v.  Eaton,  7 
Abb.  Pr.  305;  reversing  15  Hmu.  S.C.  305.)     The  objection  is  that 
no  person,  natural  or  artificial,  is  named  as  plaintiff.     Id. 

18.  Objection  Waived. — The  objection  that  plaintiff  has  not 
legal  capacity  to  sue  is  waived  if  not  taken  by  demurrer  or  answer. 
(Palmer  v.  Davis,  28 'N.Y.  242;  Belshaw  v.  Colie,  i  Smith,  213;  Hast- 


FORMS    OF     DEMURRERS.  619 

ings  v.  McKinley,  Id.  273.)  So  held,  when  the  objection  was  that  plaintiff 
was  a  married  woman,  suing  without  a  next  friend,  before  the  Act  of 
1857.  (Palmer  v.  Davis,  28  N.Y.  242.)  So  held,  when  the  objection 
was  that  plaintiff  was  a  foreign  executor.  (Robbins  v.  Welles,  26  How. 
Pr.  15.)  So  held,  in  an  action  brought  by  a  husband  and  wife  to  re- 
cover possession  of  land,  when  plaintiffs  claimed  as  owners  in  right  of 
the  wife,  and,  on  the  trial,  the  defendants  relied  on  an  appointment  by 
the  husband  and  wife,  under  an  ante-nuptial  agreement  between  them, 
of  a  trustee  for  the  property  and  effects  of  the  wife.  Van  Amringe  v. 
Barnett,  8  Bosw.  357. 

19.  Receiver. — If  it  does  not  appear  that  plaintiff  had  any  title 
to  the  note  sued  on,  it  is  sufficient  to  raise  the  question  as  to  his  right 
to  sue  as  receiver.     (White  v.  Low,  7  Barb.  204.)     Where  a  complaint 
by  a  receiver  alleges  that  he  was  duly  appointed  receiver,  but  does  not 
state  facts  from  which  the  Court  can  see  that  he  was  so  appointed,  the 
proper   remedy   is   by   motion   to  make  more  definite  and  certain. 
Cheney  v.  Fiske,  22  How.  Pr.  236. 

20.  Statement  of  Grounds. — Where  the   demurrer  specified 
as  the  ground  of  the  demurrer  that  the  complaint  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  among  other  things  that  it  did 
not  show  plaintiff's  capacity  to  sue :  Held,  a  sufficient  demurrer  to  that 
point.     (Conn.  Bank  v.  Smith,   9  Abb.  Pr.   168;    17  How.  Pr.  487.) 
The  facts  showing  the  capacity  of  the  plaintiff  to  sue  are  not  facts  consti- 
tuting the  cause  of  action.     B'k  of  Lowville  v.  Edwards,  1 1  How.  Pr. 
216;   Vibert  v.  Frost,  3  Abb.  Pr.  120;  Myers  v.  Machado  6  Abb.  Pr. 
198;  Hobart  v.  Frost,  5  Duer  672. 


Wo.  545. 

iv.    On  the  Ground  of  Another  Action  Pending. 
[TITLE.] 

The  defendant  demurs  to  the  complaint  filed   in  this 
action,  and  for  ground  of  demurrer  alleges  : 

That  there  is  another  action  pending  between  the 
same  parties  for  the  same  cause. 


62O  FORMS    OF     DEMURRERS. 

21.  Defect  must  be  Apparent. — The  fact  must  appear  on  the 
face  of  the  complaint,  for  even  if  there  is  another  action  pending  be- 
tween the  same  parties,  for  the  same  thing,  and  the  fact  does  not  appear 
on  the  face  of  the  complaint,  the  remedy  is  by  answer,  not  by  demurrer. 
(Burrows  v.  Wilbur,  5  How.  Pr.  51;   Hornfager  v.  Hornfager,  i  Code 
R.  (N.  S.)4i2.     In  the  case  of  (O'Conner  v.  Blake,  29  Cal.  322),  it 
was  held  that  plaintiff  cannot,  after  plea  in   abatement   of  the  pen- 
dency of  a  prior  suit,  avoid  the  effect  of  a  prior  plea,  by  discontinuing 
the  first  action  which  was  pending  at  the  time  of  the  plea. 

22.  Divorce. — Pendency  of  action  for  divorce  is  no  cause  of  de- 
murrer to  another  for  subsequent  offenses.     Cordier  v.  Cordier,  26 
How.  Pr.  187. 

23.  Foreclosure. — In  Nevada,  where  the  complaint  in  foreclosure 
against  the  estate  of  a  deceased  person  shows  the  fact  that  the  claim 
had  been  allowed  by  the  administrator,  it  is  demurrable  under  this  sub- 
division, as  if  it  alleged  a  former  suit  and  judgment  upon  the  same 
claim.     Corbett  v.  Rice,  2  Nev.  330. 

• 

24.  Former  Adjudication. — Where  a  bill  disclosed  that  the 
subject  matter  had  been  litigated  between  the  same  parties  in  a  prior 
suit,  and  that  in  the  said  suit  the  plaintiff  in  this  suit  had  set  up  the 
same  equity  which  he  claims  by  this  bill,  the  bill  was  held  bad  on  de- 
murrer, and  was  ordered  to  be  dismissed.     (Richey  v.  Kilbourne,  3 
Cal.  327.)     The  fact  that  a  vessel,  lost  while  being  towed  out  to  sea,  is 
insured,  does  not  divest  the  owner  of  the  right  of  action  for  her  loss, 
and  his  recovery  will  bar  another  action  for  the  same  cause,  and,  there- 
fore, the  defendant  cannot  raise  the  objection  that  the  action  is  not 
brought  by  the  real  party  in  interest.     White  v.  Maryann,  6  Cal.  462. 

25.  Quieting  Title. — In  an  action  to  quiet  plaintiff's  title  to  land, 
alleged  to  be  clouded  by  defendants  giving  out  that  the  title  is  in  them- 
selves'and  not  in  plaintiff,  an  action  of  ejectment  pending,  in  which  the 
defendant  does  not  ask  for  affirmative  relief,  is  not  available  as  a  de- 
fense.    Ayres  v.  Bensley,  32  Cal.  620. 

26.  Receiving  Judgment. — A  judgment  in  favor  of  a  receiver 
is  a  bar  to  a  subsequent  action  in  the  same  cause  by  the  party  for  whom 
he  was  appointed.     And  a  demurrer  lies  on  this  subdivision.     Tinkham 
v.  Borst,  24  How.  Pr.  246. 


FORMS    OF     DEMURRERS.  621 

27.  What  must  Appear. — For  a  demurrer  to  lie  'under  this 
subdivision,  it  must  appear  that  both  actions  are  for  the  identical  cause 
of  action.     Paige  v.  Wilson,  8  Bosw.  294;  Kelsey  v.  Ward,  16  Abb. 
Pr.  98. 

28.  When  Demurrer  Lies. — A  demurrer  lies  under  this  sub- 
division when  there  is  an  action  between  the  same  parties  in  any  pro- 
ceeding in   which  the  rights  of  the  plaintiff  in  the  last   suit  would 
be   fully   protected,  whether   strictly   an   action,   attachment,   citation 
before  the  Surrogate,  or  a  proceeding  in  Court,  founded  on  a  peti- 
tion.     (Groshon    v.    Lyon,    16   Barb.    461.)     So,   the   pendency   of 
another  action  brought  by  the  defendant  would  come  under  the  rule. 
(Hornfager  v.  Hornfager,  6  How.  Pr.   279.)     But  not  if  the  other 
action  is  for  relief,  which  could  not  be  granted  in  the  action  in  which 
the  demurrer  is  interposed.     (Haire  v.  Baker,  5  N.Y.  357.)     Nor  is  it 
sustained  where  the  other  action  is  in  a  court  of  another  state  or  a 
court  of  the  United  States.     (Burrows  v.  Miller,  5  How.  Pr.  51;  Cook 
v.  Litchfield,  5  Sandf.   330;  Strong  v.  Stevens,  4  Duer,  668.)    This 
objection  must  be  raised  under  subdivision  three.     It  cannot  be  raised 
under  subdivision  six,  assigning  for  cause  the  want  of  sufficient  facts. 
Aikens  v.  Bruen,  21  Ind.  137. 


No.  546. 

v.     On  Ground  of  Defect  of  Parties. 
[TITLE.] 

The  defendant  demurs  to  the  complaint  and  for 
cause  of  demurrer  alleges : 

I.  That  G.  H.  should  be  made  a  plaintiff  in  this 
action  [or  that  L.  M.  should  be  made  defendant  in  this 
action — state  why.~\ 


29.  Cause  of  Demurrer. — A  defect  of  parties  plaintiff  is  a  good 
cause  of  demurrer  by  all  the  defendants.  (Brownson  v.  Gifford,  8 
How.  Pr.  392;  Walroth  v.  Hamly,  24  Id.  353.)  But  the  fact  that  the 
party  whose  non-joinder  is  alleged  as  ground  of  demurrer,  is  living, 
must  appear  affirmatively  on  the  face  of  the  complaint.  (Strong  v. 


622  FORMS    OF     DEMURRERS. 

Wheaton,  38  Barb.  616;  Taylor  v.  Richards.  9  Bosw.  679;  Burgess  v. 
Abbot,  6  Hill,  135,  141;  affirming  S.C.,  i  Id.  476;  Brainard  v. 
Jones,  ii  How.  Pr.  569;  State  of  Indiana  v.  Woram,  6  Hill,  33; 
Scofield  v.  Van  Syckle,  23  How.  Pr.  39.)  If  the  fact  does  not  appear 
affirmatively,  the  objection  must  be  taken  by  answer.  Brainard  v. 
Jones,  ii  How.  Pr.  569;  Scofield  v.  Van  Syckle,  23  How.  Pr.  97; 
State  of  Indiana  v.  Woram,  6  Hill,  33. 

30.  Defect  of  Parties. — Section   1 7  of  the  California  Practice 
Act,  corresponding  with  Section  122  of  the  New  York  Code,  is  to  con- 
trol in  determining  whether  a  demurrer  for  defect  of  parties  is  well  taken. 
Wallace  v.  Eaton,  5  How.  Pr.  99. 

31.  Error  must  be  Apparent. — It  is  not  within  the  office  of 
a  demurrer  to  state  objections  not  apparent  upon  the  face  of  the  com- 
plaint, e.g.,  to  name  parties    who   should  have   been  joined;  and  no 
conclusion  is  to  be  drawn  from  such  statements  adverse  to  the  plaintiff. 
Coe  v.  Beckwith,  10  Abb.  Pr.  296. 

32.  Freight   Owners. — Where  some  of  the  part  owners  of  a 
vessel  sued   to  recover  freight,  and  the  complaint  showed   that  the 
plaintiffs   owned   three-eighths   of  the   vessel   only,   and   claimed   to 
recover  only  their  proportion  of  the  freight  money  averred  to  be  due: 
Held,  that  although  all  the  owners  should  have  joined  in  the  action,  yet 
the  defendant  had  waived  the  obligation  by  omitting  to  demur  to  the 
complaint.     Merritt  v.  Walsh,  32  N.Y.  685;  followed  in  Donnell  v. 
Walsh,  33  N.F.  43. 

33.  Interest  of  Parties. — Where  there   is  a  defect  of  parties, 
it  must  appear  that  the  party  demurring  has  an  interest  in  having  such 
other  party  made  a  defendant.     (Hillman  v .  Hillman,  14  How.  Pr.  460; 
Newbald  v.   Warren,  14  Abb.  Pr.  80;  Wooster  v.   Chamberlain,  28 
Barb.  602.)     Or  that  he  is  prejudiced  by  the  non-joinder.     Stockwell 
v.  Wager,  30  How.  Pr.  271. 

34.  Multifariousness. — Where  several    parties  are   joined  as 
plaintiffs,  and  the  issues  tendered  are  simple,  a  demurrer  for  multi- 
fariousness  will  not  he  sustained.     People  v.  Morrill,  26  Cat.  336. 

35.  Non-Joinder  of  Parties. — Under  the  New  York  Code  of 
Procedure,  the  objection  that  necessary  parties  are  not  joined  can  only 
be  taken   by  answer   or   demurrer.     (New    York    Code  of  Procedure, 


FORMS    OF     DEMURRERS.  623 

§§  144,  147,  148;  Jacks  v.  Cooke,  6  Cal.  164;  Rowe  v.  Baccigalluppi, 
21  Cal.  633;  Hosley  v.  Black,  28  N.Y.  438;  26  How.  Pr.  97;  Creeds. 
Hartman,  29  N.Y.  591;  Merritt  v.  Walsh,  32  N.Y.  685;  Donnell  v. 
Walsh,  33  N.Y.  43;  Cronch  v.  Parker,  40  Barb.  94;  Lee  v.  Wilkes, 
27  How.  Pr.  336;  S.C.,  19  Abb.  Pr.  355;  Lorschigk  v.  Addison,  Id. 
169;  Lewis  v.  Graham,  4  Alb.  Pr.  106.)  For  example,  the  non-joinder 
of  a  co-partner  as  plaintiff,  which  is  not  apparent  upon  the  face  of  the 
complaint,  can  only  be  taken  by  answer.  And  if  not  thus  interposed, 
it  is  waived.  (New  York  Code  of  Procedure,  §§  144,  147,  148;  13 
N.Y.  336;  33  Barb.  527;  31  Id.  238;  Conklin  v.  Barton,  43  Barb. 
435.)  Demurrer  for  non-joinder  of  State  in  action  against  town  com- 
missioners sustained,  (Plumtree  v.  Dratt,  41  Barb.  333.)  So,  also,  for 
non-joinder  of  corporation  in  suit  against  directors  for  embezzlement 
of  its  assets.  Gardiner  v.  Pollard,  10  Bosw.  674. 

36.  Objection  must  be  Taken. — Although  a  demurrer  to  the 
answer  reaches  back  to  the  complaint  a  defect  of  parties  cannot  be 
taken  advantage  of  in  that  way.     A  demurrer  to  the  complaint  must  be 
filed.     (McEwen  v.  Hussey,  23  Ind.  395.)     An  allegation  in  an  answer 
that  the  debt  sued  for,  if  due  at  all,  is  due  to  plaintiff  and  another  as 
partners,  cannot  be  treated  as  a  demurrer.     Andrew  v.  Mokelumne 
Hill  Co.,  7  Cal.  330. 

37.  Objection,  how   Taken. — The   objection   to   a  defect  of 
parties  in  the  complaint  should  be  taken  advantage  of  by  demurrer,  or 
it  must  be  deemed  to  have  been  waived  at  the  trial.     (Sampson  v.  Shaf- 
fer, 3  Cal.  202 ;  Warner  v.  Wilson,  4  Cal.  313;  Beard  v.  Knox,  5  Cal. 
257;  Oliver  v.  Walsh,  6  Cal.  456;  Tissot  v.  Throckmorton,  6  Cal.  473; 
McKune  v.  McGarvey,  5  Cal.  498;  Andrews  v.  Mokelumne  Hill  Co., 
7  Cal.  334;  Alvarez  v.  Brannan,  7  Cal.  510;  Dunn  v.  Tozer,  10  Cal. 
170;  Hentsch.z;.  Porter,  10   Cal.  555;  Mott  v.  Smith,  16   Cal.   557; 
Sands  v.  Pfeiffer,  10  Cal.  258;  Burroughs  v.  Lott,  19  Id.   125;  Barber 
v.  Reynolds,  33  Id.  497;  Robinson  v.  Smith,  3  Paige  Ch.  R.  222; 
Higgins  v.  Freeman,  2  Duer,   650;  Dillaye  v.  Parks,  31  Barb.  132; 
Wright  v.  Starrs,  6  Bosw.  600;  Abbe  v.  Clarke,  31  Barb.  238;  Lewis 
v.  Graham,  4  Abb.  Pr.  106;  Wright  v.  Bennett,  3  Barb.  451;  Scofield 
v.  Van  Syckle,  23  How.  Pr.  97;  Conklin  v.  Barton,  42  Barb.  435; 
Cowing  v.  Green,  45  Id.  585;  Dillaye  v.  Wilson,  43  Id.  261;  Donnell 
v.  Walsh,  33  N.Y.  43;  Hosley  v.  Black,  28  Id.  438;  Lee  v.  Wilkes, 
27  How.  Pr.  336;  Merritt  v.  Walsh,  32  N.Y.  685;  McVean  v.  Scott, 
46  Barb.  379;  Palmer  v.  Davis,  28  N.Y.  272;  Tremper  v.  Conklin,  44 
Barb.  456;  Seeding  v.  Bartlett,  35  Mo.  90. 


624  FORMS    OF     DEMURRERS. 

38.  Parties  Named.  —  It  was  the  rule  in  chancery  that  a  demur- 
rer for  want  of  necessary  parties  must  show  who  are  the  proper  par- 
ties from  the  facts  stated  in  the  bill.     Story  Eq.  PI.  501,  §  543;  Dias 
v.  Bouchaud,  10  Paige,  445;  Robinson  v.  Smith,  3  Id.  222. 

39.  Statement  of  Grounds.  —  A  demurrer  under  this  subdivi- 
sion following  the  words  of  the  Code,  that  there  is  a  defect  of  parties 
defendant,  is  insufficient  for  not  specifying  the  particular  defect.     (Skin- 
ner v.  Stuart,  13  Abb.  Pr.  442.)     It  must  show  who  are  the  proper  par- 
ties from  the  facts  stated  in  the  bill;  not  indeed  by  name,  for  that 
might  be  impossible,  but  in  such  a  manner  as  to  point  out  to  the 
plaintiff  the  objection  to  his  bill,  and  to  enable  him  to  amend  by  mak- 
ing proper  parties.     Star.  Eq.  PI.  501,  §  543;  Dias  v.  Bouchaud,  10 
Paige,  445;  Robinson  v.  Smith,  3  Id.  222. 

40.  Trust  Fund.  —  In  an  action  for  the  distribution  of  a  fund  by 
a  trustee,  the  absence  of  necessary  parties  plaintiff,  though  demurrable 
at  the  time,  is  a  defect  cured  by  failure  to  respond.     The  Gen.  Mut. 
Ins.  Co.  v.  Benson,  5  Duer,  168. 

JVo.  547. 

vi.     On  Ground  of  Misjoinder  of  Parties. 
[TITLE.] 

The  defendant  demurs  to  the  complaint,  and  for  cause 
of  demurrer  alleges: 

I.  That  I.  K.  is  improperly  made  plaintiff  in  said 
action  [or  that  N.  O.  is  improperly  made  a  defendant  in 
said  action  —  state 


41.  Executor  —  Misjoinde'r  of.  —  The  executor  of  an  indorser 
of  a  promissory  note,  who  as  such  executor  is  sued  together  with  the 
maker,  cannot  demur  to  the  complaint  in  such  action  for  a  misjoinder 
of  defendants,  if  the  complaint  states  facts  sufficient  to  constitute  a  cause 
of  action  against   him  in  his  representative  character.     Churchill   v. 
Trapp,  3  Abb.  Pr.  306. 

42.  Form  of  Demurrer.  —  A  demurrer  to  a  complaint  on  the 
ground  "  that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 


FORMS    OF    DEMURRERS.  625 

cause  of  action''  (Mann  v.  Marsh,  35  Barb.  68;  21  How.  Pr.  372; 
Walrath  v.  Handy,  24  How.  Pr.  823),  and  which  then  specifies  that  the 
complaint  shows  no  joint  cause  of  action  in  the  plaintiff,  and  that  it 
prays  for  a  judgment  in  favor  of  three  plaintiffs  for  an  injury  done  to 
one,  is  a  good  demurrer  for  misjoinder  of  parties.  Summers  v.  Far- 
rish,  10  Cal.  347. 

43.  Ground  for  Demurrer. — A  misjoinder  of  parties  plaintiff 
is  a  ground  of  demurrer.     It  is  not  a  ground  for  nonsuiting  such  plaintiffs 
as  are  entitled  to  recover.     Rowe  v.  Baccigalluppi,  21  Cal.  633;  White 
v.  Delschneider,  i  Oregon,  254. 

44.  Husband  and  Wife. — The  misjoinder  6f  husband  and  wife 
must  be  taken  advantage  of  on  demurrer.     Tissot  v.  Throckmorton, 
6  Cal.  471;  Dunderdale  v.  Grymes,  16  How.  Pr.  195;  Avogardo  v. 
Bull,  4  E.D.  Smith,  384;  Barton  v.  Draper,  5  Duer,  130. 

45.  Objection,  how   Taken. — Where  it  appears  on   the  face 
of  the  complaint  that  there  is  an  improper  joinder  of  parties,  the  objec- 
tion can  only  be  taken  by  demurrer.     Baggott  v.  Boulger,  2  Duer,  160; 
Lee  v.  Wilkes,  27  How.Pr.  336. 

46.  Too  niany  Plaintiffs. — The  ground  of  demurrer  allowed 
by  the  Code,  "  that  there  is  a  defect  of  parties  plaintiff  or  defendant," 
does  not  reach  a  case  where  there  are  too  many  plaintiffs  or  too  many 
defendants,  but  only  cases  where  parties  are  omitted.     It  is  the  same 
as   non-joinder   at   law,   and   the   omission   of  a   necessary  party  in 
equity.     (Palmer  v.  Davis,  28  N.Y.  242;  Davy  v.  Betts,   16  Abb.  Pr. 
466;    23  How.  Pr.  396;    Kolls  v.  De  Laye,  17  Abb.  Pr.  312;    S.C., 
41  Barb.  208;    S.C.,  26  How.  Pr.  468;   Peabody  v.  Wash.  Mut.  Ins. 
Co.,  20  Barb.  342;  Gregory  v.  Oaksmith,  12  How.  Pr.  134;  Phillips  v. 
Hagadon,  12  How.  Pr.  17;  Pinkney  v.  Wallace,  i  Abb.  Pr.  82;  Dean 
v.  English,  18  B.  Monr.  132;  Voorhies  v.  Baxter,  i  Abb.  Pr.  44;  Crosby 
v.  Berger,   4  Edw.  Ch.  R.  210;    Churchill  v.  Trapp,  3  Abb.  Pr.  306; 
Bank  of  Havana  v.  Magee,  20  N. Y.  359;  Gilman  v.  Rives,  10  Pet.  S. 
Ct.  298.)     So  held  in  the  case  of  a  misjoinder  of  defendants.     (N.Y. 
and  N.  H.  R.R.  Co.  v.  Schuyler,  7  Abb.  Pr.  41;    Manning  v.  State  of 
Nicaragua,   14  How.  Pr.    517;   Churchill  v.  Trapp,   3  Abb.  Pr.   306; 
Pinckney  v.  Wallace,   i  Id.  82;    Kolls  v.  De  Laye,   17  Abb.  Pr.  312.) 
So  held  in  case  of  a  misjoinder  of  plaintiffs.     (Peabody  v.  Washington 
Co.  Mut.  Ins.  Co.,  20  Barb.  339;    followed  by  Gregory  v.  Oaksmith 

40 


626  FORMS    OF    DEMURRERS. 

12  How.  Pr.  134;  People  v.  Mayor  of  N.Y.,  28  Barb.  24;  8  Abb.  Pr. 
7.)  But  the  contrary  to  the  general  proposition  of  this  rule  was  held  in 
(Leavitt  v.  Fisher,  4  Duer,  i ;  and  Walrath  v.  Handy,  24  How.  Pr. 
353.)  Where  it  says  that  the  objection  that  a  complaint  contains  an 
excess  of  parties  may  be  taken  by  demurrer  or  answer,  and  when  not 
so  taken  is  deemed  to  be  waived,  supported  by  Mann  v.  Marsh,  35 
Barb.  68. 

47.     Too   many  Plaintiffs — California  Practice. — By  the 

practice  in  California,  it  is  however  well  settled,  that  the  objection  that 
too  many  parties  are  joined  as  plaintiffs  must  be  taken  advantage  of  by 
demurrer,  if  it  appear  on  the  face  of  the  complaint,  and  if  it  does  not 
so  appear  by  answer,  or  the  same  is  waived.  (Gillam  v.  Sigman,  29 
Cal.  637.)  Denial  does  not  raise  issue  of  misjoinder  of  plaintiffs. 
Where  two  are  joined  as  plaintiffs  in  an  action  for  the  recovery  of 
possession  of  land,  a  denial  in  the  answer  that  the  plaintiffs  were  in 
possession  of  the  land  does  not  present  the  issue  of  a  misjoinder  of 
either  of  the  plaintiffs.  Id. 

48.  Unnecessary  Party  Defendant. — Where  a  co-defendant 
claimed  that  he  wa   an  unnecessary  party  to  a  suit,  he  should  have 
demurred  to  the  petition,  and  could  not  in  the  course  of  the  trial  demand 
that  his  name  be  stricken  out.     Seeding  v.  Bartlett,  35  Mo.  90. 

49.  Waiver  of  Objection. — Where  plaintiffs  offer  to  strike  out 
such  parties  demurred  to,  and  defendant  successfully  resists:  Held,  that 
such  action  on  the   part  of  defendants   is   a   waiver  of  misjoinder. 
Summers  v.  Farrish.  10  Cal.  347. 


No.  548. 

vii.    On  Ground  of  Misjoinder  of  Causes  of  Action. 

[TITLE.]   • 

The  defendant  demurs  to  the  complaint,  and  for  cause 
of  demurrer  alleges: 

That  several  causes  of  action  have  been  improperly 
united  [state  /iaw."\ 


FORMS    OF    DEMURRERS.  627 

50.  Actions,  Legal  and  Equitable. — Two  causes  of  action, 
the  one  legal  and  the  other  equitable,  cannot  be  joined,  and  demurrer 
will  lie.     Stone  v.  Fouse,  3  Cal.  292. 

51.  Actions    not    Separately    Stated.  —  It    seems    that 
in   many   of    the   States  a   demurrer   does   not  lie   to   a   complaint 
under    this     subdivision,    for     the    defect    of    not    separately    stat- 
ing   two   or   more    causes   of    action,    they   being    such    as    might 
be  united  in  one  complaint  if  properly  stated.     See  the  following  au- 
thorities:   (Badger  v,  Benedict,  4  Abb.  Pr.  176;    i  Hilt.  415;    Cook 
v.  Chase,  3  Duer,  643;  Dorman  v.  Kellam,  14  How.  Pr.  184;  4  Alb. 
Pr.  202;    Fickett  v.  Brice,  22  How.  Pr.  195;    Forsyth  v.  Edmiston,  u 
Id.  408;  Gooding  v.  McAllister,  9  Id.  123;  Harsen  v.  Bayard,  5  Duer, 
656;  Hess  v.  Buffalo  R.R.  Co.,  29  Barb.  395;    Stannard  v.  Mattice,  7 
How.  Pr.  4;  Moore  v.  Smith,  10  How.  Pr.  361;  Welles  v.  Webster,  9 
Hoiv.  Pr.  251;   Peckham  -v.  Smith,  £  Id.  4.36;   Robinson  v.  Judd,  Id. 
378;    Benedict  v.  Seymour,   6  Id.  298;   Wallar  v.  Raskan,  12  Id.  28; 
Cheney  v.  Fisk,  22  Id.  236;    Woodbury  v.  Sackrider,  2  Abb.  Pr.  402; 
State  v.  Davis,  35  Mb.  406;  Township  of  Hartford  v.  Bennett,  10  Ohio, 
441.)     But  that  a  demurrer  maybe  interposed  for  this  cause,  see  15 
Cal.  150;   Acome  v.  Amer.   Min.   Co.,  n  How.  Pr.   27;    Durkee  v. 
Saratoga  and  Wash.  R.R.  Co.,  4  Id.  227;    Getty  v.  Hudson  Riv.  R.R. 
Co.,  8  Id.   177;    Pike  v.  Van  Wormer,  5  Id.  171;    Struss  v.  Parker,  9 
Id.  342;  Van  Namee  v.  Peoble,  9  Id.  198. 

52.  Conversion  of  Chattels. — Where  the  complaint  alleged 
that  defendant  had  become  possessed  of  a  chattel,  the  property  of 
plaintiff,  and  wrongfully  converted  it  to  his,  defendant's,  use,  and  then 
demanded  damages  for  such  taking  and  detention,  and  a  restitution  of 
the  chattel:  Held  demurrable  for  improper  joinder  of  causes  of  action. 
(Maxwell  v.  Farnham,  7  How.  Pr.  236.)      The  objection  must  be 
specially  assigned  as  the  cause  of  demurrer.     Washington  v.  Eames,  6 
Allen,  417. 

53.  Demurrer  Lies. — Demurrer  may  also  be  interposed  when 
it  appears  on  the  face  of  the  complaint,  "  that  several  causes  of  action 
have  been  improperly  united."     It  is  one  of  the  leading  and  distinguish- 
ing principles  of  our  statute  that  litigation  must  not  be  conducted  by 
piecemeal,  and  whenever  the  differences  between  the  parties  arise  out  of: 
First,  The  same  transaction;  Second,  Out  of  money  transactions  of  like 
character;  Third,  When  but  one  kind  of  relief  is  prayed  for;  so  that 


628  FORMS   OF    DEMURRERS. 

one  writ  will  afford  the  remedy;  a  demurrer  will  not  be  sustained  under 
this  subdivision.  By  one  kind  of  relief  is  meant  ultimate  relief.  A 
remedy  at  law  and  equitable  relief  may  be  asked  for  in  the  same  com- 
plaint. Thus,  A.  may  sue  B.  for  trespass  and  in  the  same  complaint 
show  that  the  acts  of  trespass  are  irreparable,  and  ask  for  an  injunction. 
(Gates  v.  Kieff,  7  Cal.  124.)  The  writ  of  injunction  is  not  in  such  a 
case  asked  for  as  the  ultimate  writ  in  the  case,  nor  for  the  reason  that 
it  will  afford  the  whole  of  the  remedy;  but  as  a  protection  of  the  subject 
matter  of  the  action  pending  the  litigation.  So  allegations  of  fraud,  in 
support  of  a  cause  of  action,  and  not  as  constituting  a  separate  cause, 
do  not  make  improper  joinder  of  actions.  Campbell  v.  Wright,  21 
How.  Pr.  9;  Durant  v.  Gardner,  19  How.  Pr.  94;  10  Abb.  Pr.  445; 
Meyer  v.  Van  Collem,  7  Abb.  Pr.  222;  28  Barb.  230. 

54.  Demurrer  -will  not  Lie. — If  a  demurrer  be  interposed  against 
two  causes  of  action  in  the  complaint,  the  -demurrer  must  be  overruled 
if  either  of  the  causes  of  action  is  well  pleaded.     (Ketchum  v.  The 
State,  Laws  Oregon,   1866,  p.  38;  Butler  v.  Wood,  10  How.  Pr.  222; 
Martin  v.  Mattison,  8  Abb.  Pr.  3.)     As  to  manner  of  objection  to  mis- 
joinder  of  causes  of  action,  see  (Smith  v.  Orser,  43  Barb.  187;  Malone 
v.  Stillwell,  15  Abb.  Pr.  421.     If,  in  fact,  the  complaint  contains  but 
a  single  cause  of  action,  although  a  part  of  the  facts  constituting  it  are 
set  forth,  some  in  one  count  as  constituting  one  cause  of  action,  and 
some  in  another  as  constituting  a  separate  cause  of  action,  the  defend- 
ant cannot  successfully  demur  on  the  ground  that  the  causes  of  action 
are  improperly  united.     Hillman  v.  Hillman,  14  How.  Pr.  456. 

55.  Fraudulent  Conveyance. — The  plaintiff  having  a  claim 
against  A.,  brought  suit  against  him  to  enforce  the  claim,  and,  in  the 
same  action,  sought  to  set  aside  a  conveyance  of  real  estate  from  A.  to 
B.,  on  the  ground  that  it  was  executed  in  fraud  of  the  creditors  of  A.,  and 
made  B.  a  party   to  the  suit:     Held,  there  having  been  no  objection 
taken,  either  by  demurrer  or  answer,  on   the  ground   of  an  improper 
joinder  of  several  causes  of  action,  that  the  plaintiff  was  entitled  to  contest 
the  validity  of  the  conveyance  from  A.  to  B.   (Macondray  v.  Simmons, 
I  Cal.  393.)   The  demurrer  must  be  entirely  sustained  or  fail  together. 
Peabody  v.  Mut.  Ins.  Co.,  20  Barb.  342:  Cooper  v.  Classon,  i  Code 
Rep.  (N.S.)  347;  People  v.  Mayor  of  N.Y.,  17  How.  Pr.  57;  Wait  v. 
Ferguson,  14  Abb.  Pr.  387;  Cook  v.  Chase  3  Duer,  634. 

56.  Husband,  and  Wife. — There  is  no  misjoinder  of  actions  in  an 


FORMS    OF    DEMURRERS.  629 

action  against  husband  and  wife  to  foreclose  a  mortgage  executed  by 
husband  and  wife  to  secure  a  note  given  by  the  husband  alone,  where 
the  prayer  of  the  complaint  was  for  judgment  against  the  husband,  and 
a  decree  against  the  husband  and  wife  for  a  sale  of  the  premises.  Rol- 
lins v.  Forbes,  10  Cal.  299. 

57.  Injuries  to  Person  and  Property. — Injuries  to  person  and 
injuries  to  property  are  not  a  misjoinder  of  causes  of  action  in  New  York. 
(Grogan  v.  Lindeman,  i  Code  R.  (N.S.)  287.)   But  the  practice  differs  in 
California,  where  such  would  be  a  misjoinder  and  would  be  demurrable. 
Especially  is  this  the  case  unless  it  arises  out  of  same  transaction. 
(McCarty  v.  Freemont,  23  Cal.    197.)     Damages  for  a  personal  tort 
cannot  be  united  with  claim  for  equitable  relief.     (Mayo  v.  Maddox,  4 
Cal.  27.)    So,  a  claim  for  possession  of  real  property  and  damages  for  its 
detention  cannot  be  united  with  a  claim  for  consequential  damages. 
(Bowles  v.  Sacramento  Turnpike  Co.,  5  Cal.  224.)     So,  a  claim  in  tres- 
pass quare  clausum  fregit  ejectment  and  prayer  for  relief  is  demurrable. 
So,  where  several  matters  are  united  against  one  defendant,  perfectly  dis-' 
tinct  and  unconnected,  or  where  relief  is  demanded  against  several  de- 
fendants of  matters  of  a  distinct  and  independent  nature.     (Wilson  v. 
Castro,  31  Cal.  420. 

58.  Joint  Demurrer. — If  complaint  state  a  cause  of  action  against 
one  or  some  of  several  defendants,  a  joint  demurrer  cannot  be  sustained. 
(People  v.  Mayor  of  N.Y.,  28  Barb.  240.)     But  where  complaint  dis- 
closed a  separate  cause  of  action  against  each  defendant,  a  joint  demur- 
rer for  misjoinder  was  sustained.     Hess  v.  Buffalo  and  Niagara  Falls 
R.R.,  29  Barb.    391;  Eldridge  v.  Bell,  12  How.  Pr.  549;  Phillips  v. 
Northrup,  Id.  17;  Brownson  v.  Gifford,  8  Id.   392;  Woodbury  v.  Sack- 
rider,    2  Abb.  Pr.  402. 

59.  Objections  must  be  Taken. — Objections  to  the  misjoinder 
of  causes  of  action  should  be  taken  by  demurrer  or  answer,  or  they 
are  deemed  waived.     (Macondry  v.  Summons,  i   Cal.  393;    Jacks  v. 
Cooke,  6  Cal.  164;  Gates  v.  Kieff,  7  Id.  124;  Marius  v.  Bicknell,  20  Id. 
217;  Weaver  v.  Conger,  Id.  237;  Mead  v.  Bagnall,  15  Wis.  156;  Jones 
v.  Hughes,   1 6  Wis.  683;    Fairfield  v.  Burt,   n  Pick.  245;    Barlow  v. 
Leavitt,  12  Cush.  483;  Youngs  v.  Seely,  13  How.  Pr.   395;    White  v. 
Delschneider,   i  Or.  254.)      Misjoinder  of  actions   cannot  be  taken 
advantage  of  on  general  demurrer.     Ruhling  v.  Hackett,  i  Nev.  360. 

60.  Objection,  how  taken. — Where  a  plaintiff  brought  eleven 


630  FORMS    OF    DEMURRERS. 

qui  tarn,  actions  for  penalties  against  the  same  defendant,  who  demurred 
specially  to  each  declaration,  and  the  plaintiff  joined  in  demurrer,  a 
motion  that  one  demurrer  be  argued,  and  that  proceedings  in  the 
other  cases  be  stayed  to  abide  the  event  of  the  one  argued,  was 
denied.  A  party  bringing  a  multiplicity  of  suits  must  take  the  respons- 
ibility of  meeting  them  in  the  usual  way.  Firrett  v.  Atwill,  i  Blatchf. 
151;  S.C.,  4  N.Y.  Leg.  Obs.  215. 

61.  Objections  Waived. — If  two  causes  of  action  have  been 
improperly  joined  without  properly  stating  them,  the  objection  must  be 
taken  b^demurrer,  or  it  is  considered  waived.     Fuhn  v.  Webber,  Cal. 
Sup.  Ct.,  Oct.  T.,  1869. 

62.  Parties. — Where  there  is  a  misjoinder  of  causes  of  action, 
any  defendant  may  demur;   but  where  there  is  a  joinder  of  improper 
parties  as  defendants,  the  defendant  or  defendants  improperly  joined 
can   alone   demur.      (Ashby  v.  Winson,   26  Mo.   210.)      Where   the 
parties  joined  as  plaintiffs  are  all  interested  in  the  principal  question 
raised  in  the  bill,  and  the  issues  tendered  are  simple,  and  a  multiplicity 
of  suits  may  be  avoided,  a  demurrer  for  multifariousness  will  not  be 
sustained.     People  v.  Harrill,  26  Cal.  360;  Garner  v.  Wright,  28  How. 
Pr.  92. 

63.  Recognizance. — Suit    on  a   recognizance   given    before   a 
justice  for  the  appearance  of  defendant  S.  to  answer  a  criminal  charge. 
The  complaint,  after  setting  out  the  cause  of  action  on  the  recognizance, 
avers  that  S.,  to  secure  his  sureties,  executed  a  trust  deed  to  T.  of  cer- 
tain warrants  and  money.      This  deed  provides  that  in  case  the  recog- 
nizance be  forfeited  and  the  sureties  become  liable  thereon,  the  trustee 
is  to  apply  the  property  to  the  payment,  so  far  as  it  will  go,  of  the 
recognizance.     The  complaint  asks  to  have  this  property  so  applied. 
Held,  that  a  demurrer  for  misjoinder  of  causes  of  action  lies;  that  the 
trust  deed  has  nothing  to  do  with  the  liability  of  the  sureties.     People 
v.  Skidmore,  17  Cal.  260. 

64.  Sheriff)  Action  against. — Where  in  an  action  against  the 
Sheriff,  the  plaintiffs  declaration  contained  one  count  in  case  against 
him  as  sheriff,  for  so  negligently  executing  the  writ  as  to  cause  plaintiff 
to  lose  his  debt,  and  another  in  trover  and  conversion,  against  him 
individually  for  the  value  of  the  goods,  such  joinder  is  not  error,  for 
they  are  both  actions  on  the  case,  the  plea  and  judgment  being  the . 
same  in  each;  and  the  demurrer  of  the  defendant  to  the  declaration, 


FORMS    OF    DEMURRERS.  631 

on  the  ground  of  misjoinder,  was  properly  overruled.  (Patterson  v. 
Anderson,  40  Penn.  359.)  But  where  a  complaint  against  a  sheriff 
and  his  official  bondsmen  alleges  only  a  cause  of  action  against  him  as 
a  trespasser,  and  against  his  sureties  as  signers  of  the  bond,  and  not 
otherwise,  the  complaint  is  demurrable.  Ghirardelli  v.  Bowland,  32 
Cal.  585. 

65.  Trespass. — In  an  Action  for  trespass,  where  the  value  of  the 
property  and  damages  were  claimed:  Held,  that  demurrer  would  not 
lie  for  misjoinder  of  actions.  Tendeson  v.  Marshall,  3  Cal.  440. 


JVo.  549. 

viii.    On  the  Ground  thai  the  Complaint  does  not  State   Facts  Sufficient  to 

Constitute  a  Cause  of  Action. 
[TITLE.] 

The  defendant  demurs  to  the  complaint  filed* in  this 
action,  and  for  cause  of  demurrer  alleges : 

That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 


66.  Action  Premature. — Where  the  action  was  premature,  de- 
fendant may  demur  for  insufficient  facts.     (Harvey  v.  Chilton,  1 1  Cal. 
114;  Hicks  v.  Branton,  21  Ark.  186.)     The  Court  will  not  presume,  in 
support  of  the  demurrer,  that  the  debt  was  not  due  when  action  was 
commenced.     (Maynard  &.  Talcott,  n  Barb.  569.)     In  an  action  on  a 
bond  dated  May  loth,  1853,  conditioned  for  the  payment  of  a  sum  "  in 
two  years  from  the  first  day  of  April  last,  with  annual  interest,"  a  de- 
murrer, on  the  ground  that  no  cause  of  action  was  stated,  was  tried  in 
June,    1854.     Held,  that  as  interest  was  due  before  the  time  of  trial, 
the  plaintiff  was  entitled  to  judgment  upon  the  demurrer.     A  demurrer 
is  not  the  mode  of  raising  the  objection  that  the  cause  of  action  had 
not  accrued  when  the  action  was  commenced.     Smith  v.  Holmes,  19 
N.Y.  271. 

67.  Attachment. — A   writ  of  entry  contained  a  command   to 
attach  the  property  of  the  defendant,  and  for  want  thereof  to  take  the 
body;  queer e,  whether  a  demurrer  is  a  proper  mode  of  taking  advantage 


632  •  FORMS    OF    DEMURRERS. 

of  the  error.  (Clement  v.  Clement,  1 8  N.H,  6 1 1 .)  Where  the  defend- 
ant, as  sheriff,  collects  money  on»an  attachment  more  than  sufficient  to 
satisfy  the  attaching  creditor,  and  after  the  expiration  of  his  term  of 
office  another  attaching  creditor  attaches  the  surplus,  and  seeks  to  make 
the  ex-sheriff  liable  therefor  on  his  official  bond:  Held,  that  the  demur- 
rer to  the  complaint  was  properly  sustained,  as  there  was  no  relation  be- 
tween the  defendant  and  plaintiff  to  rendei%he  defendant  officially  lia- 
ble. Graham  v.  Endicott,  7  Cal.  144. 

68.  Bill  of  Exchange. — It  seems,  that   in  an  action   against 
drawer  and  acceptor  of  a  bill,  the  complaint  cannot  be  held  bad  on  a 
joint  demurrer  by  both  defendants,  put  upon  the  ground  that  it  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action,  if  it  states  a 
cause  of  action  against  either  defendant.     (Woodbury  v.  Sackrider,  2 
Abb.  Pr.  402.)     And  compare  Peabody  'v.  The  Washington  County 
Mutual  Ins.  Co.,  20  Barb.  339. 

69.  Bond — Delivery. — An  omission  to  aver  delivery  in  suit  on  a 
bond  must  be  taken  advantage  of  on  demurrer.     Garcia  v.  De  Satrus- 
tegui,  4  Cal.  244. 

TO.  Cloud  on  Title. — The  objection  that  the  complaint  does  not 
present  a  case  for  the  exercise  of  the  Court  to  remove  a  cloud  on  title 
may  be  demurred  to,  under  this  cause  of  demurrer.  Hotchkiss  v. 
Elting,  36  Barb.  39. 

71.  Company — Membership. — Suing  a  party  as  member  of  a 
company,  and  failing  in  body  of  complaint  to  aver  membership,  is 
ground  for  demurrer.     Tolmie  v.  Dean,  Wash.  T.,  1864,  p.  61. 

72.  Date  Illegal. — Where  the  day  of  making  the  contract  is  im- 
material, that  the  day  laid  in  the  declaration  would  be  illegal  is  not  a 
ground  of  demurrer.     Amory  v.  McGregor,  12  Johns.  287. 

73.  Departure. — Thus,  it  is  not  good  ground  of  demurrer  that  an 
amended  petition  departs  from  the  cause  of  action  set  out  in  the  orig- 
inal petition.     Hord  v.  Chandler,  13  B.  Monr.  403. 

74.  Defective  Complaint. — Where  a  complaint,  though  de- 
fective, states  facts  sufficient  to  constitute  a  cause  of  action,  the  objec- 
tion to  it  should  be  taken  by  demurrer.     (Greenfield  v.  Steamer  "Gun- 
nell,"  6  Cal.  67;  Lafleur  v.  Douglass,  Wash.  T.,   1864,  p.  215.)    As 
the  want  of-  profert  of  letters  of  administration  in  New  York.     (Alii- 


FORMS    OF    DEMURRERS.    t  633 

son  v.  Wilkin,  i  Wend.  153.)  So,  for  duplicity  in  the  allegations  of  the 
complaint,  (i  Chitt.  512;  Bradner  v.  Demick,  20  Johns.  404;  Win- 
terson  v.  Eighth  Av.  R.R.  Co.,  2  Hill,  389;  Wolfer  v.  Luyster,  i  Hall, 
146.)  A  demurrer  for  duplicity  must  point  it  out  specifically.  (Currie 
v.  Henry,  2  Johns.  433;  see,  also,  Goodingz;.  McAllister,  9  Barb.  123.) 
In  Alabama,  a  demurrer  will  not  lie  for  this  ground.  (Waynne  v. 
Whisenant,  I  Ala.  282.)  Nor  will  it  lie  for  a  variance  between 
judgment  and  execution  in  an  action  for  an  escape.  (Dakin  v.  Hud- 
son, 6  Cow.  221.)  In  New  York,  a  demurrer  on  this  ground  can  only 
be  sustained  where  the  complaint  presents  defects  so  substantial  in  their 
nature  and  so  fatal  in  their  character  as  to  authorize  the  Court  to  say 
that,  taking  all  the  facts  to  be  admitted,  they  furnish  no  cause  of  action 
whatever.  (Richards  v.  Edick,  17  Barb.  260;  Graham  v.  Camman,  5 
Duer,  697;  De  Witt  ads.  Swift,  3  How.  Pr.  280;  S.C.,  i  Code  R.  ^.) 
For  a  substantial  and  radical  defect  in  the  complaint,  the  proper  ground 
for  demurrer  is  that  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action.  4  Hoiv  Pr.  226;  14  Id.  282;  17;  Id.  487;  5 
N.Y.  359;  Spear  v.  Downing,  12  Abb.  Pr.  437;  34  Barb.  523;  Struver 
v.  Ocean  Ins.  Co.,  2  Hilt.  475. 

75.  Defect  of  Parties. — A  demurrer  to  a  complaint  on  the 
ground  that  it  does  not  state  facts  sufficient  to  constitute  a  cause  of  ac- . 
tion  does  not  raise  the  question  of  a  defect  of  parties  defendant.     But 
the  court  below  having  sustained  such  a  demurrer  in  the  present  case, 
pro  forma,  with  a  view  to  a  more  speedy  decision  by  this  Court  of  the 
question  involved,  and  the  question  of  a  defect  of  parties  having  been 
discussed  by  counsel  on  both  sides,  as  though  it  were  raised  by  the  de- 
murrer, the  order  sustaining  the  demurer  is  reversed,  without  prejudice 
to  the  right  of  the  respondent  to  object  to  the  want  of  proper  parties. 
Burhop  v.  Milwaukee,  18  Wis.  431. 

76.  Definition  of  Terms. — The  words  "  the  complaint  does  not 
state  a  sufficient  cause  of  action  "  held  equivalent  to  the  language  of 
the  Code.     (DeWitt  ads.  Swift,  3  How.  Pr.  280;  i  C.  R.  25;  6  N.Y. 
Leg.  Obs.  314.)    And  is  sufficient.     (Hoogland  v.  Hudson,  8  How.  Pr. 
343.)     And  when  certain  allegations  are  specified,  all 'other  grounds  of 
objection  are  excluded.     Nellis  v.  De  Forest,  ID  Barb.  61. 

77.  Demand. — A  complaint  for  money  had  and  received,  which 
fails  to  allege  a  demand,  is  bad  on  demurrer.     Greenfield  v.  Steamer 
"  Gunnell,"  6  Col.  68. 


634  FORMS    OF    DEMURRERS. 

• 

78.  Demurrer  Lies. — In  the  sixth  subdivision,  a  demurrer  to  a 
complaint  will  be  sustained,  "  when  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action."     It  applies  only  to  such  defects 
as  would  render  the  count  bad  on  general  demurrer  at  law,  or  bad  for 
want  of  equity  in  chancery.     The  complaint,  therefore,  to  be  over- 
thrown by  such  a  demurrer,  must  present  defects  so  substantial  in  their 
nature,  and  so  fatal  in  their  character,  as  to  authorize  the  Court  to  say, 
taking  all  the  facts  to  be  admitted,  that  they  furnish  no  cause  of  action 
whatever.     Where  the  demurrer  admits  facts  enough  to  constitute  a 
cause  of  action,  the  complaint  will  be  sustained ;  and  if  the  defendant 
requires  a  greater  degree  of  certainty  than  is  found  in  the  complaint,  he 
must  seek  his  relief  by  a  motion  that  the  pleading  be  made  more  cer- 
tain and  definite.     (Summers  v.  Farrish,  10  Cal.  347;  Cudlipp  v.  Whip- 
pie,  i  Abb.  Pr.  R.  106;  Allen  v.  Patterson,  3  Seld.  496;  Richards  v. 
Belfcs,  28  Eng.  L.  &  Eq.  R.  157;     Richards  v.  Edick,  if 'Barb.  260; 
Graham  v.  Camman,  13  How.  Pr.  R.  360;  People  v.  Mayor  of  N.Y., 
8  Abb.  Pr.  7;    Sinclair  v.  Fitch,   3  E.  D.  Smith,  677;   Thompson  v. 
O'Sullivan,  6  Allen  (Mass.)  303;  Witt  ads.  Swift,  How.  Pr.  280;    S.CJ 
i   Code  R.  25.)     Where  a  complaint  fails  to  state  a  cause  of  action, 
and  the  defendant,  at  the  trial,  objects,  on  that  ground,  to  the  intro- 
duction of  any  evidence,  such  objection   is   equivalent  to   a  general 
demurrer,  and  a  judgment  for  the  plaintiff  must  be  reversed.     Hays 
v.  Lewis,  17  Wis.  210.  « 

79.  Demurrer,  when  Taken. — Demurrer  under  this  subdivi- 
sion may  be  taken  at  any  stage  of  the  case.     (Budd  v.  Bingham,  18 
Barb.  494;  Gould  v.  Glass;  19  Barb.  186;  Higgings  v.  Freeman,   2 
Duer,  650;  Montgomery  Co.  Bank  v.  Albany  City  Bank,  3  Seld.  464; 
Hayes  v.  Lewis,  17  Wis.  210;  People  v.  Booth,  32  N.Y.  397.)     Nor  is 
the  failure  to  demur  upon  this  ground  a  waiver  of  the  objection.     Cat. 
Pr.  Act,  §  45;  3  How.  Pr.  280;  Andrews  v.  Lynch,  27  Mo.  167;  Lud- 
ington  v.  Taft,  10  Barb.  447. 

80.  Demurrer  -will  not  Lie. — But  under  this  subdivision  de- 
fendant cannot  bring  objections  to  the  form  of  the  action;  (3  How.  Pr. 
280;  i   C.  R.  25;  17  Barb.  260;  5  Duer,  697;  Taylor  v.  Richards,  9 
Bosw.  679;  Loomis  v.  Tifft,  16  Barb.  541;  Phillips  v.  Bartlett,  9  Bosw. 
678;)  nor  that  the  Court  has  no  jurisdiction;   (Wilson  v.  Mayor  of 
N.Y.,  6  Abb.  Pr.  6;  15  How.  Pr.  500;  4  E.  D.  Smith,  706,  note;  nor 
that  there  is  an  improper  joinder  of  parties;  (Eldridge  v.  Bell,  12  How. 
Pr.  547;)  nor  that  the  plaintiff  has  not  legal  capacity  to  sue;  (Vibert 


FORMS    OF    DEMURRERS.  635 

v.  Frost,  3  Abb.  Pr.  120;  Hobart  v.  Frost,  5  Duer,  671;)  nor  that  the 
right  to  sue  is  in  third  person  not  a  party  to  the  action;  (Myers  v.  Ma- 
chado,  6  Abb.  Pr.  198;  but  see  Palmer  v.  Smedly,  Id.  205;  De  Witt 
v.  Chandler,  n  Abb.  Pr.  459;)  nor  that  complaint  does  not  show 
authority  to  sue.  (Bank  of  Lowville  v.  Edwards,  n  How.  Pr.  216; 
Bank  of  Havana  v.  Wicktnan,  7  Abb.  Pr.  134.)  The  objection  that 
the  money  sued  for,  if  due  at  all,  is  due  to  plaintiff  and  another  as 
partners,  is  not  a  demurrer.  (Andrews  v.  Mok.  Hill  Co.,  7  Cal.  330.) 
So,  when  the  bill  alleges  a  parol  trust,  a  general  demurrer  will  not  lie. 
Peralta  v.  Castro,  6  Cal.  354. 

81.  Divorce. — An-  objection  that  a  complaint  in  an  action  for 
divorce,  stating  the  existence  of  common  property,  is  uncertain  and 
defective  in  not  stating  the  facts  showing  the  property  to  be  common, 
must  be  raised  by  demurrer,  or  it  will  be  deemed  waived.     Gimmy*. 
Gimmy,  22  Cal.  633. 

82.  Effect  of  Demurrer. — A  demurrer  on  this  subdivision  puts 
in  issue  the  validity  of  the  entire  complaint.     (White  v.  Brown,  14 
Hoiv.  Pr.  282;  Spear  v.  Downing,  12  Abb.  Pr.  442;  34  Barb.  523.) 
And  if  it  specifies  certain  allegations  deemed  essential,  it  excludes  all 
other  grounds  of  objection  than  those  which  are  particularly  set  forth. 
(Nellis  v.  De  Forest,  26  Barb.  61.)     And  the  statement  that  certain 
parts  of  the  complaint  are  immaterial  and  redundant  does  not  vitiate 
the  demurrer.     (Smith  v.  Brown,  6  How.  Pr.  383.)     But  defendants 
cannot  by  demurrer  refuse  to  grant  a  compensation  which  the  demur- 
rer admits  the  right  of.     Selkirk  v.  Sacramento  Co.,  3  Cal.  323. 

83.  Enforcement  of  Judgment. — When  the  bill  shows  that 
the  complainant,  who  seeks  to  enforce  a  judgment  at  law,  is  chargeable 
with  laches,  the  defendant  may  take  advantage  of  it  by  demurrer. 
Maxwell  v.  Kennedy,  8  How.  Pr.  210. 

84.  Forcible   Entry  and  Detainer. — The  statute  does  not 
require  an  allegation  in  the  complaint  of  possession.     An  averment 
that  the  premises  are  unlawfully  withheld  from  plaintiff  is  somewhat 
general,  yet  not  insufficient,  in  a  justice's  court,  except  on  demurrer. 
Cronise  v.  Carghill,  4  Cal.  122. 

85.  Guaranty. — A    complaint,    alleging    that    the    defendants 
sold  to  plaintiffs  a  certain  share  of  fruit  growing  in  an  orchard,  and 
after  the  sale  executed  a  warranty  that  the  share  of  plaintiffs  should 


636  FORMS   OF    DEMURRERS. 

be  at  their  disposal,  and  further  alleging  a  demand  for  the  same,  and 
the  refusal  of  the  defendant  to  deliver,  is  demurrable,  as  it  should  have 
contained  an  assignment  of  the  breach  of  the  contract  or  guaranty. 
Dabovich  v.  Emeric,  7  Cal,  109. 

86.  Interest   of  Parties. — Under  this  subdivision,  defendant 
may  demur  on  the  objection  that  plaintiff  has  no  interest  in  the  action. 
(Palmer  v.  Davis,  28  N.F.  272;  Walrath  v.  Handy,  24  How.  Pr.  353.) 
That  plaintiff  is  not  the  real  party  in  interest.     Westervelt  v.  Alcock, 
3  E.  D.  Smith,  243;  Jackson  v.  Weedon,   i  Id.  142;  Savage  v.  Corn 

Ex.  Ins.  Co.,  4  Bosw.  2. 

• 

87.  Kind  of  Money. — If  the  kind  of  money  is  not  distinctly 
averred  in  the  complaint,  defendant  may  demur.      McComb  v.  Reed, 
29  Cal.  281. 

88.  Liens — An  objection  to  a  lien  for  want  of  dates  may  be  made 
on  demurrer  or  on  a  motion  to  strike  off,  but  after  pleading  to  the 
scire  facias,  it  must  be  considered  as  waived.      Howell  v.  The  City  of 
Philadelphia,  38  Penn.  471. 

89.  Performance. — Where  complaint  was  a  condition  precedent, 
but  fails  to  aver  performance,  defendant  may  demur.    (Happe  v.  Stout, 
2  Cal.  460.)    So,  in  case  of  a  promissory  note.    (Rogers  v.  Cody,  8  Cal. 
324.)     A  demurrer  for  the  cause  that  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action  may  be  disregarded,  if  defend- 
ant choose  to  answer  instead  of  standing  on  the  demurrer.     Levey  v. 
Fargo,  i  Nev.  415. 

90.  Presentation    of  Claim. — Where,  in  an  action  of  fore- 
closure, the  complaint  fails  to  state  the  presentation  to  and  rejection  by 
the  adminstrator  of  the  claim  against  the  State,  defendant  may  demur 
on  the  ground  of  insufficient  facts.     (Ellison  v.  Halleck,  6  Cal.  386; 
Falkner  v.  Folsom,  Id.  412;    Hentsch  v.  Porter,  10  Id.  558.)      These 
cases  are  overruled  by(Fallon#.  Butler,  21  Cal.  24;)  and  the  correct- 
ness of  the  latter  decision  is  doubted  by  the  case  of  (Ellis  v.  Polhemus, 
27  Cal.  354.)    The  case  of  Ellisen  v.  Halleck,  6  Cal.  393,  is  either 
discussed  or  referred  to  in  the  following  cases:  6  Cal.  412;  7  Cal.  124; 
9  Cal.  501;  10  Cal.  30;  24  Cal.  498. 

91.  Quo  Warranto. — In  quo  warranlo  for  an  alleged  usurpation 
of  the  office  of  pilot  for  the  port  of  San  Francisco,  the  complaint  avers 


FORMS    OF    DEMURRERS.  637 

that  defendants  hold,  use,  exercise,  usurp,  and  enjoy  the  office  without 
a  license,  and  also  certain  allegations  as  to  the  right  of  relator  to  the 
office:  Held,  that  these  allegations  as  to  relator's  rights  cannot  be  reached 
by  general  demurrer,  the  complaint  being  good  as  against  the  defend- 
ants; that  they  are  not  interested  in  the  question  as  to  the  right  of 
relator,  but  only  in  the  determination  of  then-  own  right  to  the  office. 
Flynn  v.  Abbott,  16  CaL  358. 

92.  Res  Adjudicata. — Demurrer  will  not  lie  to  a  bill  on  the 
ground  of  res  adjudicata,  unless  it  avers  that  everything  in  controversy, 
as  the  foundation  of  the  suit,  was  in  controversy  in  the  former  suit. 
(Moss  v.  Anglo-Egyptian  Navigation  Co.,  Law  Rep.  i  Ch.  108.)     The 
judgment  of  a  court  of  competent  jurisdiction  upon  a  material  matter 
put  directly  in  issue  by  the  pleadings  is  res  adjudicata  as  to  that  issue, 

'  and  the  parties  are  estopped  by  the  judgment  from  litigating  it  again. 
Jackson  v.  Lodge,  36  CaL  28. 

93.  Securities. — The  objection  that  securities  sued  on  are  not 
promissory  notes  must  be  made  on   demurrer.      Powell  v.  Ross,  4 
Cal.  197. 

94.  Services  of  Physician. — In  a  suit  by  a  physician  against  a 
county  on  a  contract  for  his  services  for  one  year  as  examining  physi- 
cian of  the  hospital,  the  objection  that  he  is  not  a  graduate  of  a  legally 
constituted  medical  institute,  if  good  at  all,  cannot  be  taken  by  demur- 
rer, unless  the  demurrer  distinctly  present  the  objection.     McDaniel  v. 
Yuba  County,  14  Cal.  444. 

95.  Specific  Relief. — To  entitle  the  plaintiff  to  subject  the  assets 
of  an  absent  debtor  in  the  payment  of  his  claim,  he  must  show  that  he 
is  without  a  remedy  at  law,  and  if  the  bill  discloses  such  remedy  at  law 
it  will  be  dismissed  upon  demurrer.     Lupton  v.  Lupton,  3  Cal.  220. 

96.  Stamp  on  Note. — A  demurrer  will  not  lie  to  a  complaint 
on  a  promissory  note  which  fails  to  aver  or  show  that  the  note  was  duly 
stamped.     Hallock  v.  Jandin,  34  Cal.  1 67. 

97.  Statement  of  Grounds. — The  demurrer  is  sufficient  with- 
out a  specification  of  the  reason  why  the  facts  stated  are  not  sufficient. 
(Kent  v.  Snyder,  30  Cal.  666.)     It  is  sufficient  under  this  subdivision 
to  state  that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.     Haire  v.  Baker,  5  N.F.  357;  Paine  v.  Smith,  2  Duer, 


638  FORMS    OF    DEMURRERS. 

298;  to  the  sameeffect,  De  Witt  ads.  Smith,  3  Hmu.  Pr.  280;  S.C.,  i 
Code  R.  25;  6  N.Y.  L?g.  Obs.  314;  Durkee  v.  Saratoga  and  Wash. 
R.R.  Co.,  4  How.  Pr.  226;  S.C.,  2  Code  R.  145;  Hyde  v.  Conrad,  5 
How.  Pr.  112;  S.C.,  3  Code  R.  162;  Johnson  v.  Wetmore,  12  Barb. 
433;  White  v.  Brown,  14  How.  Pr.  282;  to  the  contrary,  Purdyp.  Car- 
penter, 6  How.  Pr.  361;  citing  Van  Santv.  PI.  421;  Hunds  v.  Twed- 
dle,  7  Id.  278;  to  same  effect  Grant  v.  Lesher,  2  Code  R.  2;  Hunter  v. 
Frisbee,  Id.  59;  Loomis  v.  Tifft,  16  Barb.  541. 

98.  Statute  of  Frauds. — The  Statute  of  Frauds  may  be  taken 
advantage  of  on  demurrer  to  a  bill  which  on  its  face  states  a  case  cov- 
ered by  the  Statute.     Randall  v.  Howard,  2  Black.  U.S.  585. 

99.  Statute  of  Limitations. — If  it  appear  on  the  face  of  the 
complaint  that  the  demand  is  barred  by  the  Statute  of  Limitation,  de- 
murrer will  be  sustained.    But  the  bar  of  the  Statute  must  clearly  appear 
on  the  face  of  the  complaint.     (Sublette  v.  Tinney,  9  Cal.  423;  Bar- 
ringer  v.  Warden,   12  Id.  311;  Smith  v.  Hall,   19  Id.  85;  Smith  v. 
Richmond,  Id.  476;  Ord  v.  De  La  Guerra,  18  Id.  67;    but  see  on  this 
point  Sands  v.  St.  John,  36  Barb.  628;  23  How.  Pr.  140.)     It  should 
be  distinctly  stated  in  the  demurrer.      (Brown  v.  Martin,  25  Cal.  89; 
Farwell  v.  Jackson,  28  Id.  106.)     It  is  a  personal  privilege  which  must 
be  set  up  or  be  deemed  waived.      (Grattan  v.  Wiggins,  23  Cal.  16.) 
Under  our  system  the  rule  is  the  same  in  law  and  equity;  and  if  it  appear 
upon  the  face  of  the  complaint  that  the  action  is  barred,  and  no  facts 
are  alleged  taking  the  demand  from  the  operation  of  the  Statute,  the 
complaint  is  defective,  and  demurrer  lies.    (Smith  v.  Richmond,  19  Cal. 
476;  Maxwell  v.  Kennedy,  8  How.  U.S.  210.)     If  the  demand  be  in 
truth   barred,  but  the   fact   does  not  appear  upon   the  face  of    the 
complaint,  the  defense  must  be  made  in  answer.      Where  a  bill  in 
equity  states  a  case  to  which  the  Act  of  Limitations  applies,  without 
bringing  it  within  some  of  the  savings,  the  defendant  may  take  advant- 
age of  the  bars  by  demurrer.      (Wisner  v.  Barnet,  4  Wash.  C.  Ct.  631.) 
Where  the  Statute  creates  an  absolute  bar  by  mere  lapse  of  time,  with- 
out exception,  the  defense  may  be  made  by  demurrer,  if  the  necessary 
facts  appear  in  the  complaint.      (States.  Bird,  22  Mo.  470.)     But  the 
demurrer  should  be  resorted  to  only  where  it  clearly  appears  that  the 
plaintiffs  case  has  been  fully  stated,  and  that  being  so  stated  no  recovery 
can  be  had.     (McNair  v.  Lott,  25  Mo.  182.)      By  the  practice  in  New   • 
York,  it  appears  that  the  defense  of  the  Statute  of  Limitations  can  only 


FORMS   OF     DEMURRERS.  639 

be  taken  by  answer.  N.F.  Code,  §  74;  10  How.  Pr.  383;-  16  Id.  546; 
Sands  v.  St.  John,  36  Barb.  628;  S.C.,  23  How.  Pr.  140. 

100.  Statutory  Penalty. — In  an  action  to  recover  damages  by 
the  owner  of  a  licensed  ferry,  against  a  party  alleged  to  have  run  a  ferry 
within  the  limits  prohibited  by  law,  it  was  held  that  the  complaint  should 
have  alleged  that  defendant  ran  his  ferry  for  a  fee  or  reward,  or  the 
promise  or  expectation  of  it,  or  that  he  ran  it  for  other  than  his  own 
personal  use  or  that  of  his  family;  and  the  omission  of  those  allegations 
was  fatal.     Hanson  v.  Webb,  3  Cal.  237. 

101.  Undertaking  on  Attachment. — In  an  action  on  an  un- 
dertaking executed  to  release  property  from  attachment,  the  complaint 
should  allege  that  the  property  attached  was  released  upon  the  delivery 
of  the  undertaking.     (Williamson  v.  Blattan,  9  Cal.  500.)     A  failure  to 
do  so  is  fatal,  and  the  defect  may  be  taken  advantage  of  by  demurrer, 
on  the  ground  that  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action.     Id. 

102.  Undertakings — Penal  Bonds. — In  an  action  by  the  Post- 
master-General against  a  deputy  postmaster  and  his  sureties,  on  the  bond 
executed  by  them,  the  sureties  pleaded  that  plaintiff  did  not,  as  he  was 
bound  by  law  to  do,  call  upon  his  deputies  to  settle  his  accounts,  or 
cause  suits  to  be  brought  against  him  for  not  so  doing;  nor  did  he  give 
notice  to  the  sureties  of  the  defaults,  but  fraudulently,  and  in  violation  of 
his  duty  to  the  United  States  and  to  the  sureties,  neglected  to  bring  such 
actions,  and  to  give  notice.    Held,  that  the  demurrer  having  admitted  the 
fraud  stated  in  the  plea,  the  plaintiff  could  not  recover.     Postmaster- 
General  v.  Ustick,  4  Wash  C.  Ct.  347;    United  States  v.  Sawyer,  i  Gall. 
86;  Bockee  v.  Crosby,  2  Paine,  432;  Egberts  v.  Dibble,  2  McLean,  86; 
Bank  of  Illinois  v.  Brady,  3  Id.  268;  Greathouse  v.  Dunlap,  Id.  303; 
Hart  v.  Rose,  Hempst.  238;   Hartfield  v.  Patton,  Id.   268;  McCue  v. 
Corporation  of  Washington,  3  Cranch.  C.  Ct.  639. 

103.  What  it  Admits. — Demurrer  on  the  ground  that  the  com- 
plaint does  not  state  facts  sufficient  to  constitute  a  cause  of  action  admits 
the  validity  of  the  statute  authorizing  plaintiff  to  sue.      Litchfield  v. 
McComber,  42  Barb.  288. 

104.  Written  Instrument. — An  objection  to  the  pleading  of  a 
written  instrument,  by  stating  its  legal  effect,  instead  of  setting  forth  its 
contents,  can  be  taken  only  by  demurrer.     Kellogg  v.  Baker,  1 5  Abb. 
Pr.  286. 


640  FORMS    OF    DEMURRERS. 


No.  550. 

ix.    On' the  Ground  of  Ambiguity. 
[TITLE.] 

The  defendant  demurs  to  the  complaint,  and  for  cause 
of  demurrer  alleges: 

That  the  complaint  is  ambiguous,  unintelligible,  or 
uncertain.  \_Point  out  specially  in  what  the  ambiguity 
or  uncertainty  consists^ 


105.  Demurrer  Lies. — This  cause  of  demurrer  may  be  inter- 
posed when  the  complaint  is  "  ambiguous,  unintelligible,  or  uncertain." 
Under  this  subdivision  it  is  necessary  for  the  pleader  to  point  out 
wherein  the  complaint  is  ambiguous,  unintelligible,  or  uncertain  (Blanc 
v,  Klumpke,  29  Cal.  156),  or  it  will  be  deemed  waived.      Brown  v. 
Martin,  25  Cal.  82. 

106.  Ejectment. — In  ejectment,  where  the  complaint  avers  that 
"  the  plaintiff  on  a  day  named  was,  and  ever  since  has  been,  and  still 
is,  the  owner  in  fee  simple,  seized  and  possessed,"  etc.;  "  that,  on  a  day 
thereafter  named,  and  while  the  plaintiff  was  so  the  owner  in  fee  simple, 
seized  and  possessed,  defendants  entered  and  ousted  him,  and  from 
thence  hitherto  have  and  still  do  withhold  the  same,"  etc.,  may  be  de- 
murred to  for  ambiguity.     Brown  v.  Martin,  25  Cal.  82. 

107.  New  York. — Mere  indefiniteness  and  uncertainty  are  not 
enough  to  sustain  a  demurrer  in  the  State  of  New  York.     Chesbrough 
v.  N.Y.  and  Erie  R.R.  Co.,  13  How  Pr.  557;  Richards  v.  Edick,  17 
Barb.  260;   People  ex  rel.   Crane  v.  Ryder,   12  N.Y.  433;    Martin  v. 
Kanouse,  2  Abb.  Pr.  327;  Clark  v.  Dales,  20  Barb.  42;  Welles  v.  Web- 
ster, 9  How.  Pr.   251;    Finnerty   v.  Barker,  7  N.Y.  Leg.^Obs.  316; 
Roeder  v.  Ormsby,  13  Alb.  Pr.  334;  Village  of  Warren  v.  Philips,  30 
Barb.  646. 

108.  Official  Bond. — In  an  action  on  an  official  bond,  if  a  copy  of 
the  bond  annexed  should  not  contain  the  signature  of  the  principal,  de- 


FORMS    OF     DEMURRERS.  641 

fendant  may  demur  for  ambiguity.  (Mendocino  Co.  v.  Morris,  32 
Cal.  145.)  A  complaint  in  an  action  on  the  bond  given  by  a  tax  col- 
lector is  not  ambiguous  and  uncertain  because  it  does  not  aver  that 
any  of  the  money  sued  for  was  collected  on  account  of  foreign  miners' 
licenses.  People  v.  Love,  25  Cal,  520. 

109.  Sale    and   Delivery. — A  declaration  setting  forth   that 
plaintiff  had  purchased  a  quantity  of  goods  from  W.  and  P.,  "then  and 
there  acting  as  agent  of  the  defendant,"  is  only  another  form  of  declar- 
ing that  he  had  purchased  from  the  defendant,  and  is  sufficiently  cer- 
tain to  prevent  any  misapprehension  of  its  meaning,  and  is  good  on 
demurrer.     Cochran  v.  Goodman,  3  Cal.  245. 

110.  Statement  Essential. — A  demurrer  to  a  complaint,  on  the 
ground  that  it  is  ambiguous,  unintelligible,  and  uncertain,  must  speci- 
fically state  in  what  the  ambiguity  or  uncertainty  consists,  or  it  will  be 
disregarded.     Yolo  County  v.  City  of  Sacramento,  36  Cal..  193. 

111.  When  Demurrer  -will  not  Lie. — In   Ohio,   demurrer 
will  not  lie  for  indefiniteness  or  uncertainty.      (Spice  v.  Steinruck,  4 
Ohio  (N.S.)  213.)     So,  a  demurrer  will  not  lie  for  uncertainty  in  New 
York.     The  omission  to  state  the  time  and  place  of  slander  is  not  a 
ground  for  demurrer;  the  remedy  is  by  motion.     (Finnerty  v.  Barker, 
7  N.Y.  Leg.  Obs.  316.)     So,  where  an  executor  united  notes  payable  to 
his  testator.     (Welles  v.  Webster,  9  How.  Pr.  251.)     But  a  demurrer 
will  lie  for  uncertainty  in  California.     Cal.  Pr.  Act,  §  40,  Subd.  7. 


JVo.  551. 

x.    Several  Grounds  of  Demurrer. 
[TITLE.] 

The  defendant  demurs  to  plaintiff's  complaint  on  the 
following  grounds: 

I.  That  the  court  has  no  jurisdiction  of  the  person 
of  the  defendant  [or,  as  the  case  may  be,  of  the  subject 
of  the  action.  State  wherein  the  want  of  jurisdiction 
lies.~\ 

41 


642  FORMS    OF     DEMURRERS. 

II.    That   plaintiff  has    not   legal   capacity  to   sue 
[state  why] 

III.  That  there  is  another  action  pending  between 
the  same  parties,  for  the  same  cause  of  action. 

IV.  That  there  is  a  defect  or  rnisjoinder  of  parties 
plaintiff  or  defendant   [state  in  what  the  defect  or  mis- 
joinder  consists.] 

V.  That  several  causes  of  action  have  been  improp- 
erly united  in  this  [state  how  improperly  united] 

VI.  That  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action.    [No  reasons  need  be  as- 
signed under  this  subdivision] 

VII.  That  the  complaint  is  ambiguous,  unintelligible 
or  uncertain  \_point  out  specially  in  what  the  ambigiiity 
or  uncertainty  consists] 


112.  Note. — A  pleading  should  not  be  demurred  to:  First,  Unless 
it  is  clearly  demurrable;  and,  Second,  Except  for  cause  which  clearly  ap- 
pears upon  the  face  of  the  complaint.  (Davy  v.  Betts,  23  How.  Pr. 
395;  Dillaye  v.  Wilson,  43  Barb.  261.)  The  fact  that  the  statute  gives 
several  instances  wherein  a  demurrer  may  be  made  affords  no  excuse 
for  exhausting  the  list  on  every  complaint  demurred  to;  though  sev- 
eral causes  of  demurrer  may  be  assigned. 


PART  FIFTH. 

DEFENSES   TO  THE   ACTION. 


CHAPTER   I. 

ANSWERS    IN    GENERAL. 

1.  In  the  ordinary  sense,  an  answer  means  a  reply. 
In  pleading,  it  may  be  a  reply  which  either  admits  or  de- 
nies the  facts  alleged  in  the  complaint,  or  it  may  admit, 
and  then  avoid  the  effect  of  the  admission  by  making 
a  counter  statement;  or  the  answer  may  be  in  the  nature 
of  a  cross  complaint,  asking  for  affirmative  relief.     In 
either  case  the  object  of  an  answer  is  to  make  an  issue. 
Without  an  issue  no  trial  can  be  had,  because  there  is 
no  question  of  difference  between  the  plaintiff  and  de- 
fendant— in  other  words  plaintiff  asks  for  nothing  which 
defendant  refuses  to  grant  him.      Burrell,  in  his  Law 
Dictionary,  Vol.  i.,  defines  an  answer  to  be  any  pleading, 
except  a  demurrer, 'framed  to  meet  a  previous  pleading. 

2.  Under  our  practice,  where  the  complaint  is  sworn 
to,  the  defendant  must  deny  specifically  each  allegation 
in  the  complaint.     But  by  each  allegation  is  meant  each 
material  allegation;  for  if  plaintiff  makes  averments  in 


644  ANSWERS     IN    GENERAL. 

his  complaint  not  necessary  or  material  to  present  his 
cause  of  action,  or  if  he  avers  conclusions  of  law,  or  sets 
out  evidence,  these  need  not  be  traversed,  for  they  are 
not  issuable  facts,  or,  if  issuable,  they  are  not  pertinent 
to  the  case.  Because  plaintiff  makes  a  history  of  his 
complaint,  is  no  reason,  necessity,  or  excuse  for  defend- 
ant to  deny  the  truth  of  that  history.  Nor  is  it  proper 
to  seek  out  the  very  words  of  the  complaint,  and  then 
negative  each  and  every  one  of  them.  An  issue  is  not 
as  well  or  as  clearly  made  by  negativing  the  language 
of  the  complaint  in  terms  as  by  denying  the  facts  ex- 
pressed by  such  language. 

3.  If  plaintiff  has  been  wronged,  some  one  has  in- 
jured him,  and  defendant,  to  make  an  issue,  only  needs 
to  deny  the  ultimate/acts.     In  general,  the  reasons  which 
caused  the  injury  need  not  be  pleaded     The  commis- 
sion of  the  injury,  the  time  and.  place,  extent  of  the  inju- 
ry, and  the  person  who  did  it,  in  most  cases  should  be 
traversed. 

4.  For  example,  in  a  case  of  forcible  entry,  defend- 
ant (the person]  denies  that  on  the  ....  day  of  January, 
1870,  or  at  any  other  time  (the  time],  he  broke  or  en- 
tered into  the  premises  described  (the  wrong],  or  dam- 
aged plaintiff  in  any  amount  (extent  of  injury].     If,  for 
instance,  and  which  is  frequently  the  case,  the  plaintiff 
alleges  that  at  the  time  stated  defendant  wrongfully  and 
unlawfully  broke,   etc.  etc.,   defendant  need  only  deny 
the  breaking;  the  Court  will  be  competent  to  say  whether 
it  was  wrongful  or  unlawful  after  the  proofs  <are  heard. 
That  is  what  the  Court  is  for.     The  pleader,  whether 
representing  plaintiff  or  defendant,  should  only  allege 
or  deny  the  facts;  the  effect  of  the  existence  of  certain 


ANSWERS     IN    GENERAL.  645 

facts  is    left  for  the  disposition  of  the  tribunal  which 
the  parties  appeal  to  for  justice. 

5.  Defendant's  counsel,  when  about  to  make  answer 
to  a  complaint,  inquires:     First,  Has  any  wrong  been 
alleged  in  the  complaint  ?     Second,  Does  the  complaint 
charge  the  defendant  with  the  commission  of  the  wrong  ? 
Third,  Is  defendant  liable  to  the  extent  alleged  in  the 
complaint?     Fourth,    Has  defendant  a  counter  claim? 
Fifth,  Was  the  injury  done  within  the  Statute  of  Limit- 
ations ?     Sixth,  Did  the  defendant  do  the  wrong  ?     And 
these  inquiries  will  suggest  to  the  pleader  what  answer 
will  raise  an  issue. 

6.  When  any  of  the  matters  enumerated  in  Section 
forty  of  the  California  Practice  Act  (N.Y.  Code,  §  147), 
do  not   appear  upon  the  face  of  the  complaint,   the 
objection  may  be  taken  by  answer,  and  the  demurrer  to 
the  complaint  having  been  disposed  of,  the  defendant 
may  make  his  answer,  filing  the  original  with  the  clerk 
of  the  court  in  which  the  action  is  brought,  and  serving 
a  copy  upon  the  adverse  party  or  his  attorney,  if  within 
the  county.     (Cal.  Pr.  Act,  §  38;  Oliphant  v.  Whitney, 
34  Cal.  25.)     If  the  complaint  is  not  demurred  to,  the 
defendant  has  the  same  time  to  answer  as  for  demurer. 
See  "Demurrer,"  Ante,  p.  598,  Note  9;  see,  also,  Cal. 

Pr.  Act,  §25;  Grewell  v.  Henderson,  5  Cal.  465. 

• 

7.  The  time  to  answer  in  the  several  states  is  fixed 
by  the  statutes  of  such  states,  and  the  practice  of  the 
courts    in  many  of  them  differs  from  the    practice  in 
California.     In  Missouri,  the  defendant  has  six  days  to 
answer,  but  he  may  file  his  answer  at  any  time  within 
that  period,  and  if  filed  within  that  time  plaintiff  must 


646  ANSWERS    IN    GENERAL. 

reply  within  two  days,  unless  the  Court  for  good  cause 
extend  the  time.  (Beach  v.  Curie,  15  Mo.  105.)  In 
New  York,  defendant  must  answer  within  the  statutory 
time  or  such  further  time  as  he  may  obtain  by  order. 
(Mandeville  v.  Winn,  5  How.  Pr.  461;  McGown  v. 
Leaven  worth,  2  E.  D.  Smith,  24;  Dudley  v.  Hubbard, 
2  Code  R.  70;  Craham  v.  McCown,  i  Code  Rep.  (N. S.) 
45;  Foster  v.  Udell,  2  Code  Rep.  30;  contra,  Carpenter 
v.  New  Haven  R.R.  Co.,  u  How.  Pr.  483.)  In 
California  an  answer  filed  without  leave  of  court,  after 
the  time  for  answering  has  expired,  but  before  default 
has  been  entered,  is  not  a  nullity,  but  at  most  an  irregu- 
larity. (Bowers  v.  Dickerson,  18  Cat.  420.)  The 
Court  in  its  discretion  may  strike  it  out  or  retain  it,  or 
permit  another  to  be  filed;  but  plaintiff  cannot,  as  of 
right,  have  such  answer  stricken  out.  For  these  pur- 
poses defendant  is  not  in  default  until  his  default  has 
been  actually  entered  in  accordance  with  the  statute. 
(Id.)  If  the  defendant  demurs  only,  and  the  demurrer 
is  overruled,  the  Court  may  allow  him  to  answer,  impos- 
ing terms  in  its  discretion.  See  Cat.  Pr.  Act,  §§  42,  67; 
Manmus  v.  Hamblon,  Cat.  Slip.  Ct.,  Jul.  T.,  1869. 

8.  In  reference  to  the  time  in  which  the  answer 
must  be  filed,  courts  will  take  judicial  notice  of  the  ter- 
ritorial extent  of  the  jurisdiction  and  sovereignty  exer- 
cised de  facto  by  their  own  government,  and  of  the 
local  cli  visions  of  the  country  into  states,  counties,  cities, 
towns,  etc.  (People  v.  Smith,  i  Cat.  9.)  When  a 
demurrer  is  interposed  and  overruled,  the  question 
of  time  to  answer  and  terms  are  chiefly  regulated  by 
the  rules  and  discretion  of  the  court  (Thorton  v.  Bor- 
land, 12  Cal.  438)  in  which  the  cause  is  pending.  (Cat. 
Pr.  Act,  §  43;  People  v.  Rains,  23  Cal.  128.)  For  if 


ANSWERS     IN    GENERAL.  647 

the  demurrer  is  deemed  frivolous,  terms  will  be  imposed 
before  answer  is  allowed.  Such  a  rule  is  required  to 
prevent  demurrer  from  becoming  a  means  of  delay  only, 
and  if  the  Court  does  not  fix  the  time  within  which 
answer  in  such  case  must  be  filed,  the  defendant  should 
answer  within  the  same  time  as  in  case  of  service  of 
copy  of  the  original  complaint.  People  v.  Rains,  23 
Cal.  128. 

9.  When  the  defendant,  on  motion  being  decided  in 
his  favor,  is  allowed  time  to  answer  until  the  plaintiff 
elects  on  which  count  of  the  complaint  he  will  go  to 
trial,  the  plaintiff  should  serve  a  copy  of  the  complaint 
with  the  notice  of  his  election.     (Wilson  v.  Cleveland, 
30  Cal.  192.)     And  if  an  answer  has  been  already  filed, 
it  may  be  allowed  by  order  of  the  court  to  stand  as  the 
answer  to  such  amended  complaint,  and   it   shall  be 
treated  as  if  filed  when  the  order  is  made.     (Mulford 
v.   Estudillo,    32  Cal.   131.)     If  the  defendant  should 
fail  to  answer  in  the  time  specified  in  the  summons,  it  is 
not  an  unsound  exercise  of  discretion  in  the  Court  to  refuse 
him  leave  to  file  an  answer  which  does  not  show  a  meri- 
torious defense.     (Hallowell  v.  Page,  24  Mo.  590;  Page 
v.  Page,  Id.  595.)     Under  the  California  Practice,  the 
defendant  may  file  an  appearance  and  answer  immedi- 
ately after  suit  brought  and  without  service,  if  he  so  de- 
sires— thus'joining  issue  at  once. 

DEFENSE. 

10.  A  defendant  should  set  forth  the  true  nature  of 
his  defense  in  his  answer.     (Walton  v.  Minturn,  i  Cal. 
362.)     As  the  proofs  for  the  defense  must  be  limited  to 
the  averments  in  the  answer.     (Turner  v.  "Black  War- 
rior," i  Me  All.  1 8 1.)     Where  the  pleadings  are  veri- 


648  ANSWERS     IN    GENERAL. 

fied,  every  matter  of  defense,  not  directly  responsive  to 
the  allegation  of  that  complaint,  must  be  set  up  in  the 
answer.  (Terry  v.  Sickles,  13  Cal.  427.)  Or  it  may 
be  addressed  to  part  of  the  complaint,  and  must  be  so 
stated.  (Nichols  v.  Dusenbury,  2  N.Y.  583;  Foster  v. 
Hazen,  12  Barb.  547;  Loveland  v.  Hosmer,  8  How. 
Pr.  215;  Thumb  v.  Walrath,  6  Id.  196;  Kneedler  v. 
Sternbergh,  10  Id.  67.)  If  the  complaint  contains  two 
counts,  and  the  answer  takes  issue  on  the  allegation  of 
one  only,  plaintiff  is  entitled  to  judgment  on  the  other. 
Leffingwell  v.  Greffing, '31  Cal.  231. 

1 1 .  Equitable  defenses  may  be  set  up  in  an  action  of 
a  legal  nature.     (Dobson  v.  Pearce,  12  N.  Y.  156;  S.C., 
i   Abb.  Pr.  97;  affirming  S.C.,  i   Duer,   142;  and   10 
N.Y.  Leg.  Obs.  170;  Crary  v.  Goodman,  12  N.Y.  266; 
reversing  S.C.,  9  Barb.  657;  Burget  v.  Bissell,  5  How. 
Pr.    192;  and  see  Miller  v.  Platt,  5   D^t,er,  272,  284.) 
Whether  an  answer  states  a  purely  legal  or  an  equitable 
defense  must  be  determined  by  the  answer  itself,  and 
not  from  the  findings  of  the  Court.     (Bodely  v.  Fergu- 
son, 30  Cal.  511.)     But  an  issue  of  law  and  fact  should  not 
be  mixed  in  an  answer.     (Brooks  v'.  Douglass,  32  Cal. 
208;  Gould  v.  Williams,  9  How.  Pr.  51.)     In  the  nat- 
ural order  of  business,  it  is  the  duty  of  the  Court  first 
to  try  and  decide  upon  this  equitable  defense,  before 
proceeding  with  the  action  of  law.     Martin  v.  Zeller- 
bach,  Cal.  Sup.   Ct.,  Jul.    T.,   1869. 

12.  In  pleading  an  ordinance  or  enactment  founded 
upon  a  statute,  in  an  action  on  contract,  which  is  in  vio- 
lation of  said  ordinance,  it  is  not  necessary  to  plead 
the  statute  specially.     (Beman  v.  Tugnot,  5  Sand.  153.) 
How  thes  tatute  should  be  pleaded,  where  it  is  neces- 


ANSWERS     IN    GENERAL.  649 

sary  to  do  so,  see  Bank  of  Columbia  v.  Ott,  2  Cranch 
C.  Ct.  575;  Union  Bank  of  Georgetown  v.  Eliason, 
Id.  667. 

13.  In   Indiana,  where  an  answar  is  founded  on   a 
written  instrument,  a  copy  of  the  instrument  must  be 
annexed.     (Seawright   v.  Coffman,    24  Ind.    414.     In 
California,  when  a  written  instrument  is  so  pleaded,  the 
genuineness  and  due  execution  of  such  instrument  shall 
be  deemed  admitted,  unless  the  plaintiff  file  with  the 
Clerk,  five  days  before  the  commencement  of  the  term 
at  which  the  action  is  to  be  tried,  an  affidavit  denying 
the  same.     (Cal.  Pr.  Act,  §  54.)     But  not  by  a  failure 
to  controvert  the  same  on  oath,  as  prescribed  in  this 
and  Section  53,  Cal.  Pr.  Act,  unless  the  party  contro- 
verting the  same  is,  upon  demand,  permitted  to  inspect 
the  original  before  filing  such  affidavit.     That  the  exe- 
cution of  the  writing  sued  upon  is  put  in  issue  by  the 
plea  of  the  general  issue,  see  (Gray  v.  Tunstall,  Hempst. 
588.)     It  has  been  held  in  some  of  the  states,  that,  if  a 
defendant  sets  up  a  contract  which  is  required  to  be  in 
writing,  he  must  so  state  it,  or  his  answer  is  insufficient. 
Taylor  v.  Hillary,  I   Gale,  22;    n   Law  your.  Ex.  72; 
but  see   15  Barb.  368;   Case  v.  Barber,  i  Raym.  461. 

PLEAS. 

14.  A  respondent  is  not  bound  to  put  his  defense 
upon  the  answer,  and  reserve  it  for  a  final  hearing;  but 
he  may,  if  it  be  the  subject  for  a  plea,  put  it  into  that 
shape,  in  order  to  save  the  expense  of  going  into  a  gen- 
eral examination.     (Wilson  v.  Graham,  4  Wash.  C.  Ct. 
53.)     It  is  a  general  rule  that  a  plea  ought  not  to  con- 
tain more  defenses  than  one.     Various  facts  can  never 


650  ANSWERS    IN    GENERAL. 

be  pleaded  in  one  plea,  unless  they  are  all  conducive  to. 
the  single  point  on  which  the  defendant  means  to  rest 
his  defense.  Rhode  Island  v.  Massachusetts,  14 
Pet.  210. 


15.  A  plea  professing  to  answer   the  whole  com- 
plaint, but  which  answers  only  a  part,  is  bad  on  demur- 
rer.    (Wallace  v.  Bear  River  Wat.  and  M.  Co.,  18  Cal. 
461;  Weimar  v.  Shelton,  7  Mo.  237;  Leslie  v.  Harlow, 
1 8  N.H.  518;  Feaster  v.  Woodhill,  23  Ind.  493;    Fitz- 
simmons  v.  City  Ins.  Co.,  18  'Wis.  234;  Hogan  v.  Ross, 
13  How.  U.S.  173.)      A  defendant  cannot  in  different 
counts  deny   the  same  facts  in  different  language,  or 
make  only  a  partial  defense  to  a  whole  cause  of  action, 
or  set  out  matter  in  avoidance,  without  confessing  that 
which  he  attempts  to  avoid.    (Martin  v.  Swearengen,  17 
Iowa,  346.)     A  plea  is  defective  when  its  averments,  if 
admitted  to  be  true,  would  not  constitute  a  defense  to 
the  action.      White  v.  How,  3  McLean,  291;  Grant  v. 
Raymond,  6  Pet.  218;    United    States   v.  Spencer,  2 
McLean,  405;  Smith  v.  Ely,  5  Id.  76. 

1 6.  That  the  plea  should  be  direct  in  stating  with' 
sufficient  precision  the  matter  of  defense,  and  not  leave 
it  to  be  found  out  by  inference,  however  strong,  see, 
(Brooks  v.  Bryan,  i  Story  C.  Ct.  296;    Savage  v.  Goe, 
3    Wash.   C.    Ct.  140;    Meeker  v.  Wren,  i    Wash.    T. 
87;  Roeder  v.  Brown,  Id.  130.)    Matters  of  inducement 
in  a  plea  should  be  an  answer  to  the  opposite  party's 
allegations.     The  traverse  is  but  an  inference  from  the 
inducement.      (Egbert  v.  Dibble,  3  McLean,  86.)      A 
plea  which  might  be   objectionable  on  the  ground  of 
want  of  sufficient  certainty  cannot  be  treated  as  a  nul- 


ANSWERS    IN    GENERAL.  651 

•lity  by  the  Court,  unless  its  sufficiency  is  excepted  to. 
Cunningham  v.  Wheatly,  21   Texas,  184. 

17.  If  the  allegations  of  a  defense  are  pertinent  to 
the  controversy,  their  sufficiency  is  only  to  be  tested  by 
demurrer,  or  on  the  trial.     (Carpenter  v.  Bell,  19  Abb. 
Pr.  258.)     But  in  New  York  it  has  been  held,  an  answer 
which  does  not  set  up  a  counter  claim  is  not  demurrable. 
(Reilay  v.  Parker,  1 1  How.  Pr.  266.)     Where  a  party 
sets  up  matter  in  his  answer  not  recognized  by  law  as  a 
defense  to  the  action,  while  the  objection  may  be  taken    * 
by  demurrer,  it  is  not  waived  by  failure  to  demur,  but 
may  be  taken  advantage  of  at  any  time.    McDougall  v. 
Maguire,  35  Cal.  274. 

1 8.  The  defense,  that  the  defendant  acted  by  advice 
of  counsel,  must  show  that  such  advice  was  given  upon 
a  full  and  fair  statement  of  the  facts.     (Bliss  v.  Wyman, 
7  Cal.  257.)     It  is  improper  to  set  up  in  an  answer  that 
the  complaint  does  not  contain  facts  sufficient  to  consti- 
tute a  cause  of  action.     Slack  v.  Heath,  i  Abb.  Pr.  331. 

WHAT   ANSWER    SHOULD    CONTAIN. 

19.  The  answer  should  contain:  First,  If  the  com- 
plaint be  verified,  a  specific  denial  to  each  allegation  of 
the  complaint  controverted,  or  a  denial  thereof  according 
to  his  information  and  belief;  if  the  complaint  be  not 
verified,  then  a  general  denial  to  each  of  said  allegations. 
Second,  A  statement  of  matter  in  avoidance,  a  counter 
claim  constituting  a  defense,  or  the  subject  matter  of 
cross  complaint,  which  may  entitle  a  defendant  to  relief 
against  the  plaintiff  alone,  or  against  the  plaintiff  and  a 
co-defendant.     Cal.  Pr.  Act,  §  46. 


652  ANSWERS  IN  GENERAL. 

20.  The  plaintiff  is  entitled  to  an  explicit  denial  of 
the  material  allegations  of  the  complaint,  or  an  admission 
of  their  truth,  either  by  direct  statement  or  by  silence, 
(i  Barb.  Ch.  137;  Racouillat  z\  Rene,  32  Cal.  450;  Gay 
v.  Winter,  34  Cal.  153.)     The  material  allegations  are 
such  as  the  plaintiff  must  prove  on  the  trial,  in  order  to 
maintain  his  action.      (Garvey  v.  Fowler,  5  Sand.  54.) 
And  a  denial  of  such  allegations  only,  is  sufficient.   ( Cal. 
Pr.  Act,  §  46;    Racouillat  v,  Rene,  32  Cal.  450;    King 
v.  Utica  Ins.  Co.,  6  How.  Pr.  485.)      But  it  seems  that 
in  New  York,  a  general  and'specific  denial  of  the  same 
matter  is  not  allowed,  and  one  or  the   other  will  be 
stricken  out   as  redundant.      (i    Van  Santv.  PI.  408; 
N.Y.  Code,\  149;  Dennison  v.  Dennison,  9  How  Pr. 
246;  Blake  v.  Eldred,  18  Id.  240.)     In  Louisiana,  under 
the  Code  of  that  State,  which  allows  general  and  special 
pleas,  if  not  inconsistent  with  each  other,  an  amended 
answer  which  specifies  a  particular  fact  in  aid  of  the  gen- 
eral denial  is  allowable.      Andrews  v.  Hensler,  6  Wall. 
U.S.  254. 

DENIALS    IN     THE    ANSWER. 

21.  A  denial  may  be  general  or  specific,  at  the  op- ' 
tion  of  the  pleader;  but  in  either  case  it  must  be  direct 
and  unequivocal.    An  averment  that  this  defendant  says 
he  denies  is  insufficient.     (Taylor  v.  Richards,  9  Bosw. 
679;  Arthur  v.  Brooks,  14  Barb.  533;  Blake  v.  Eldred, 

1 8  Hoiu.  Pr.  240;  West  v.  Am.  Exch.  Bank,  44  Barb. 
175;  Mower  v.  Burdick,  4  McLean,  7;  Lavany  v.  Goe, 
3  Wash.  C.  Ct.  140;  Meeker  ^.  Wren,  i  Wash.  T.  87; 
Roeder  v.  Brown,  Id.  130;  but  see  Munn  v.  Taulman, 
i  Kans.  254.)  Though  they  are  not  necessarily  frivo- 
lous. (Elton  v.  Markham,  20  Barb.  343;  Lawrence  v. 


ANSWERS    IN    GENERAL.  653 

Williams,  cited  in  Wall  v.  Buffalo  Water  Works  Co.,  18 
N.Y.  119-122;  Livingston  v.  Hammer,  7  Bosw.  670.) 
So,  a  general  denial,  with  a  qualification  of  "except  as 
hereinafter  admitted,"  is  insufficient  to  put  in  issue  any  of 
its  allegations.  Hensley  v.  Tartar,  i^Cal.  508;  Levin- 
son,  v.  Schwartz  22  Cat.  229;  People  v.  River  Raisin 
R.R.  Co.,  12  Mick.  389. 

22.  A   denial    of  each    and  every  allegation  of  a 
complaint,  except  what  the  Court  may  construe  to  be 
admitted  in  the  foregoing  part  of  the  answer,  is  bad. 
(Starbuck  v.  Dunklee,  10  Minn.  168.)     A  denial  of  an 
allegation  that  defendant  did  as  therein  alleged,  is  bad. 
(Mier  v.  Cartledge,  4  How.  Pr.  115;  but  see  the  Eng- 
lish Practice,  Chittys  Forms  of  Pr.  107,  108.)      So, 
also,  if  no  issue  is  raised  by  the  defendant,  a  closing  denial, 
stating  that  "the  defendant  denying  each  and  every 
allegation  set  -forth  in  plaintiff's  complaint  not  consistent 
with  the  foregoing  answer,"  fails  to  raise  an  issue.   (Rich- 
ardson v.  Smith,  29   Cal.  529.)     Asa  denial,  whether 
general  or  special,  only  puts  in  issue  the  allegations  of 
the  complaint,  the  difference  between  a  general  and  spe- 
cial denial  is  only  in  the  extent  to  which  the  allegations 
are  traversed.     Coles  v.  Soulsby,  2 1  Cal.  47. 

23.  The  material  allegations  of  a  complaint  must  be 
denied  either  positively  or  upon  information  and  belief. 
(San  Francisco  Gas  Co.  v.  City,  9  Cal.  453.)     And  the 
failure  to  deny  a  material  averment  is  an  admission  of 
the  facts  contained  in  such  averment,  and  such  admission 
is  conclusive  against  the  pleader,     (i   Van  Santv.  398; 
i  Barb.  Ch.  Pr.  i^;  Burke  v.  Table  Mt.  Co.,  12  Cal. 
403;  Blankman  v.  Vallejo,  15  Cal.  638;   Smith  v.  Rich- 
mond,  15  Id.  501;    Patterson  v.  Ely,  19  Id.  28;    Surget 


654  ANSWERS    IN    GENERAL. 

v.  Byers,  Hempst.  715.)  So,  a  denial  of  the  exact  value 
alleged  in  the  complaint  of  the  property  sued  for,  is  an 
admission  of  any  lesser  amount.  (Towdy  v.  Ellis,  22 
Cal.  650.)  But  where  the  defendant,  instead  of  denying 
that  the  property  alleged  to  have  been  destroyed  was 
of  the  value  of  twenty-five  thousand  dollars,  or  any  other 
sum  greater  than  the  sum  of  two  thousand  five  hundred 
dollars,  avers  that  the  plaintiff  has  not  sustained  damage 
to  exceed  the  latter  sum,  it  puts  in  issue  the  value  of 
the  property,  or  the  amount  of  the  damages  so  far  as 
they  are  laid  at  more  than  the'latter  sum.  Hill  v.  Smith, 
27  Cal.  476;  Chamon  v.  San  Francisco,  Cal.  Sup.  Ct., 
Jul.  T.,  1869;  followed  in  Nunan  v.  San  Francisco, 
Cal.  Sup.  C/.,  Oct.  T.,  1869. 

24.  Such   denial  should  cover  the  whole  ground 
either  of  the  complaint  itself,  or  of  that  portion  of  it  to 
which  it  is  intended  to  apply;   (Harper  v.  Haynes,  30 
III.  404;  Loosey  v.  Orser,  4  Bosw.  39 1 ;  Gilbert  v.  Cram, 
12  How.  Pr.  455;)   and  present  a  clear  and  complete 
issue  in  substance  as  well  as  in  form.     Dimon  v.  Dunn, 
i$N.Y.  498. 

25.  The  failure  of  a  defendant  to  deny  the  charges 
in  a  complaint,  making  out  a  prima  facie  case  for  the 
plaintiffs,  will  throw  the  onus  on  defendant,  in  proving 
his  affirmative  allegations.     (Thompson  v.  Lee,  8  Cal. 
275.)     Where  the  answer  failed  to  deny  in  such  form 
as  to  put  in  issue  any  material  allegations  of  the  com- 
plaint, the  plaintiff  is  entitled  to  judgment  for  the  full 
amount.     (Doll,  Adm'r,  v.  Good,  Cal.  Sup.  Ct.,  Jul.  T., 
1869.)      An  answer  consisting  of  denials  only  is  not 
amendable  as  of  course.       Plumb  v.  Whipples,  7  How. 
Pr.  411;  Farrand  v.  Herbeson,  3  Diter,  655. 


ANSWERS  IN  GENERAL.  655 


GENERAL  DENIAL. 

26.  Under  our  system  of  practice  in  this  State,  a 
general  denial  is  equivalent  to  the  general  issue.  (Brooks 
v,  Chilton,  6  Cal.  640;  Glover  v.  Cliff,  10  Id.  303;  White 
v.  Moses,  n  Id.  69;  Salinger  v.  Lusk,  7  Ohio  Pr.  R. 
430;  McKyring  v.  Bull,  16  N.Y.  298.)  And  upon 
not  merely  every  fact  alleged,  but  also  upon  all  implica- 
tions and  conclusions  of  law  arising  out  of  those  facts. 
Prindle  v.  Carruthers,.  1 5  N.  Y»  42  5 ;  Bellinger  v.  Craigue, 
31  Barb.  534;  Academy  of  Music  v.  Hackett,  2  Hilt. 
217;  Haight  v.  Holley,  3  Wend.  263;  Marston  v.  Allen, 
8  Mees.  &  W.  494;  Lord  v*  Cheesborough,  4  Sand. 
696;  Van  Geison  v.  Van  Geison,  i  C.  R.  (N.S.)  414. 

27.  There  is  no  such  thing  as  the  common  law 
general  issue,  under  the  Code  of  New  York.      ( Van 
Santv.  PL,  Vol.  i.,  p.  406;  Fay  v.  Grimsteed,  10  Barb. 
321;    Houghton  v.  Townsend,   8  How.  Pr.  R.  441; 
Stoddard  v.  Onondaga  Conf.,  12  Barb.  575;    Catlin  v. 
Gunter,  i  Duer,  253.)     Although  the  general  denial  is 
in  most  respects  like  it.     Livingston  v.  Finkle,  8  How. 
Pr.  R.  486. 

t 

28.  Under  the  general  denial,  evidence  of  a  distinct 

affirmative  defense  is  not  admissible.  (Beatty  v.  Swar- 
thout,  32  Barb.  293.)  Such  as  payment.  (Walters  v. 
Washington  Ins.  Co.,  i  Clarke  (Iowa),  404;  Field  v. 
Mayor  etc.  of  N.Y.,  6  N.Y.  179;  Edson  v.  Dillaye,  8 
How.  Pr.  273.)  Or  an  award  of  an  arbitration.  (Brazill 
v.  Isham,  12  N.  Y.  8;  affirming  S.C.,  i  E.  D.  Smith, 
437;  Gihon  v.  Levy,  2  Duer,  176;  N.Y.  Central  Ins. 
Co.  v.  National  Pretection  Ins.  Co.,  20  Barb.  468; 
Zabriskie  v.  Smith,  13  N.  Y.  322. 


656  ANSWERS    IN    GENERAL. 

29.  See  generally,  as  to  evidence  of  any  attendant 
circumstances  tending  to  show  that  plaintiff  has  no  cause 
of  action  against  the  defendant  being  admissible  under 
a  general    denial,   i   Van  Santv.  PI.   252;    Bridges   v. 
Paige,    13  Cal.  640;    Miller  v.  Decker,  40  Barb.  228; 
McDonell  v.  Buffum,  31  How.  Pr.  154;  Shular  v.  Hud- 
son  Riv.  R.R.  Co.,  38  Barb.  653;  Robinson  v.  Com- 
mercial Ex.  Ins.  Co.,  i  Abb.  Pr.  (MS.)  186;  McMurry 
v.  Gifford,  5  Ohio  Pr.  Rep.  14. 

30.  If  an  answer,  in  response  to  an  allegation  of  the 
complaint,  instead  of  denying  it  in  express  terms,  con- 
tains the  averment  that  the  defendant  did  not  commit 
the  act  charged,  or  that  the  facts  alleged  to  exist  do  not 
exist,  these  averments  of  the  answer  traverse  the  matters 
alleged,  and  are  good  denials  of  the  same.     Hill  v. 
Smith,  27  Cal.  479. 

LITERAL   AND    CONJUNCTIVE    DENIALS. 

» 

3 1 .  Under  our  practice,  and  that  of  the  common  law, 
a  specific  denial  of  one  or  more  allegations  is  held  to  be 
an  admission  of  all  others  well  pleaded.      (De  Ro  v. 
Cordes,  4  Cal.  117.)      It  has   also  been  held  by  our 
courts,  that  a  specific  denial  to  each  allegation  of  a  com- 
plaint is  a  separate  denial  only  to  the  specific  allegation 
controverted;    (San  Francisco  Gas  Co.  v.  The  City,  9 
Cal.  453;  Dennison  v.  Dennison,  9  How.  Pr.  247;   Sew- 
ard  v.  Miller,  6  Id.  312;)  as  the  object  of  the  Code  in 
allowing  plaintiff  to  verify  is  to  narrow  the  proof  on 
the  trial,  and  compel  defendant  to  deny  specifically  each 
allegation.    (Gas  Company  v.  San  Francisco,  9  Cal.  453.) 
And  defendant  must  either  deny  the  facts  alleged  or 
confess  and  avoid  them.     Piercy  v.  Sabin,  10  Cal.  22; 
Fish  v.  Redington,  31  Cal.  185. 


ANSWERS     IN     GENERAL.  657 

32.  The  rules  of  pleading  under  our  system  are  in- 
tended to  prevent  evasion,  and  to  require  a  denial  of 
every  specific  averment  in  a  sworn  complaint,  in  sub- 
stance and  in  spirit,  and  not  merely  a  denial  of  its  lit- 
eral truth;   and  whenever  the  defendant  fails  to  make 
such  denial,  he  admits  the  averment.     Smith  v.  Rich- 
mond, 15  Cat.  501;  Blankman  v.  Vallejo,  Id.  638;  Cas- 
tro v.  Wetmore,  16  Id.  380;  Higgins  v.  Wortel,  18  Id. 
333)  Woodwofth  v.  Knowlton,  22  Id.  169;  Landers  v. 
Ballou,  26  Id.'^ij;  Merrill  v.  Merrill,  Id.  292;  Camden 
v.  Mullen,   29  Id.   564;    Blood  v.   Light,   31   Id.    115; 
Tolandz/.  Mandell,  Cat.  Sup.  Ct.,  Jul.  T.,  1869;  Doll, 
Adm'r,  v.  Good,  Cat.  Sup.  Ct..  Jid.  T.,  iS^g. 

33.  It  is  now  the  settled  law  that  where  defendant 
denies  plaintiffs  proposition  in  a  verified  complaint,  as 
a  whole  and  as  conjunctively  stated,   that  it  is  alike  in 
violation  of  the  principles  of  common  law  pleading,  as 
well  as  the  express  direction  of  our  statute,  and  thus  an 
answer  to  a  verified  complaint  should  contain  a  specific 
denial  to  each  allegation  of  the  complaint  controverted, 
br  a  denial  thereof  according  to  the  defendant's  inform- 
ation and  belief.     (Reed  v.  Calderwood,  32   Cal.    109; 
Burke  v.  Carruthers,  31  Cal.  467;  Fish  v.  Redington,  31 
Cal.  194;   Moore,  v.  Del  Valle,  28  Cal.   170;  Brown  v. 
Scott, 25  Id.  195;  Woodworth  v.  Knowlton,  22  Id.  164; 
Brown  v.  Scott,  25  Id.  195;  Lay  v.  Neville,  25  Id.  545; 
Landers  v.  Bolton,  26  Id.  417;  Richardson  v.  Smith,  29 
Cal.  529;  Fitch  v.  Bunch,  30  Id.  208;  Caulfield  v.  San- 
ders, 17  Cal.  569;  Kuhlaijd  v.  Sedgwick,  Id.  123;  Bu- 
seniusz/.  Coffee,    14  Id.  91;   Henley  v.  Tartar,  Id.  508; 
Hopkins  v.  Everett,  6  How.  Pr.  159;  Salinger  v.  Lusck, 
7  How.  Pr.  430;  Davidson  v.  Powell,  16  How.  Pr.  467; 
Sherman  v.  N.Y.  Central  Mills,  i  Abb.  Pr.  187;  Baker 

42 


658  ANSWERS     IN     GENERAL. 

v.  Bailey,  16  Barb.  54:  Young  v.  Catlett,  6  Duer,  443; 
Beach  v.  Barons,  13  Barb.  305;  Livingston  v.  Ham- 
mer, 7  Bosw.  70;  Otis  27.  Ross,  8  How.  Pr.  193;  King 
v.  Ray,  ii  Paige,  235;  Elton  z/.  Markham,  20  Barb. 
343;  Blake  #.  Eldred,  18  How.  Pr.  240.)  But  in  New 
York,  the  doctrine  it  would  seem  has  been  qualified  in 
Wall  v.  Buffalo  Wat.  Works,  18  N.Y.  119. 

34.  If  an  allegation  of  a  complaint  consists  of  several 
clauses  or  propositions  connected  by  the    copulative 
conjunction  "and,"  a  denial  of  the  entire  allegation  is 
evasive  and  insufficient.     Each  proposition  should  be 
separately  denied.     (More  v.  Del  Valle,   29  Cal.   170.) 
Where  several  allegations  of  a  complaint  are  not  con- 
nected by  the  conjunction  "  and,"  a  denial  in  the  answer 
of  these  allegations   conjunctively  does  not  amount  to 
a  denial  of  the  allegations  to  which  the  defendant  pro- 
fesses to  respond.     Fitch  v.  Bunch,  30  Cal.  208. 

35.  Literal    denials,  following  the    very   words  of 
the    complaint,  are  insufficient.     So,  where  the  answer 
denied    the    allegations    of    indebtedness    as    to   the 
time,    amount,    and    work,  in  the    very  words  of  the 
complaint:    Held,    that  the   answer   raised   an   imma- 
terial    issue     upon     the     particulars.       (Caulfield     v. 
Sanders,     17     Cal.    569.)     So,    where    the    form    of 
tKe   allegation    was    that    defendant    "unlawfully   and 
wrongfully  seized  and  took  said  property  into  his  pos- 
session from  said  plaintiff,"  and  defendant  denied  "  that 
he     (defendant)     wrongfully    and     unlawfully    seized, 
took,  or  carried  away  the  said  property:"  Held,  that  the 
fact  that  defendant  took  the  property  from  the  plaintiff 

was  not  denied,  but  admitted.  Woodworth  v.  Knowl- 
ton,  22  Cal.  164. 


ANSWERS     IN     GENERAL.  659 

I 

36.  An  averment  in  the  complaint  that  the  act  was 
"  wrongfully  and  maliciously  done,"  and  a  denial  in  the 
answer  that  it  was  "  wrongfully  and   maliciously  done," 
does  not  put  in  issue  the  doing  of  the  act.     (Kinsey  v. 
Wallace,  36  Cat.  463.)      But  an  allegation  in  a  com- 
plaint that  the  assignment  which  the  plaintiff  seeks  to 
set  aside  was  made   with  intent  to  hinder,  delay,  and 
defraud  creditors,  etc.,  is  sufficiently  put  in   issue  by  a 
denial  that  the  assignment  was   made  with  intent  to 
hinder  and  defraud  creditors.     Read  v.  Worthington, 
9  Bosw.  N.  Y.  617. 

37.  An   allegation  in   a  sworn   answer,   that    "  on 
a   certain   day   the    said    French    and    Robinson,    by 
deed    duly    executed,    acknowledged,    and   recorded, 
conveyed   said  premises  to    this    defendant,    for    the 
sum    of    seven    thousand    seven    hundred     and    fifty 
dollars,"  is  not  denied  by  a  statement  in  the  replication, 
that  "  the  plaintiffs  further  deny  that  said  French  and 
Robinson,  or  either  of  them,  conveyed  said  premises 
to  the  defendant  for  the  sum  of  seven  thousand  seven 
hundred  and  fifty  dollars,  or  for  any  other  sum."     Such 
denial  is  a  mere  denial  that  French  and  Robinson  con- 
veyed the  premises,  without  denying  the  facts   which 
constitute  the  conveyance;  besides   it  does  not  deny 
the  conveyance,  the  material  fact,  but  only  a  convey- 
ance for  a  consideration.     Under  such  denial,  the  party 
making  such  averment  is  not  required  to  offer  his  deed 
in  evidence  on  the  trial.     The  allegation  of  the  answer 
is  deemed  admitted  under  the  provisions  of  the  statute. 
Landers  v.  Bolton,  26  Cal.  416. 

38.  Although  the  allegation  of  the  complaint  is  in 
the  conjunctive,  the  denial  must  be  in  the  disjunctive. 


66O  ANSWERS     IN     GENERAL. 

» 

See,  bearing  in  this  point,  the  following  authorities:  (Davis 
v.  Mapes,  2  Paige,  105;  King  v.  Ray,  n  Id.  235; 
Beach  v.  Barons,  13  Barb.  305.)  For  other  illustrations 
of  this  familiar  principle,  see  Hopkins  v.  Everett,  3 
Code  R.  150;  Otis  v.  Ross,  8  How.  Pr.  193;  Salinger 
v.  Lusk,  7  Id.  430;  Shearman  v.  N.Y.  Central  Mills,  i 
Abb.  Pr.  187;  Davison  v.  Powell,  16  How.  Pr.  467; 
Baker  v.  Bailey,  16  Barb.  54. 

DENIAL   OF    LEGAL   CONCLUSIONS. 

• 

39.  If  the  answer  merely  denies  a  conclusion  of  law 
resulting  from  the  facts  contained  in  the  complaint,  it  is 
insufficient.      (Cal.   Pr.  Act.,  §§50,    57;  N. Y.    Code, 
§§  152,  1 60;   Steph.  PI.  1 80;    i  Chitt.  PI.  645;   i   Van. 
Santv.  416;  Nelson  v.  Murray,  23    Cal.  338;  Kuhland 
v.  Sedgwick,  17  Cal.  123;  McKyring  v.  Bull,  16  N.Y. 
297;  Witherspoon  v.  Van  Dolar,    15   How.   Pr.   266; 
De  Santes  v.  Searle,    n    How.  Pr.   477;    Higgins  v. 
Rockwell,  2  Duer,  650;  Brown  v.  Ryckman,  12   How. 
Pr.  313;  Bentley  v.  Jones,  4  How.  Pr.  202;  Drake  v. 
Cockroft,  4  ^.  D.  Smith,  34;   10  /^W.  Pr.  377;   i  y^>. 
/V.  203;  Mullen  v.  Kearney,  2    C.  R.  18;    Fosdick  z>. 
Groff,  22  How.  Pr.  158;   Holgate  v.  Brown,  8   Minn. 
243;   Hoopes   v.  Meyer,  i  Nev.  433;  Seeley  v.  Engell, 
17  Barb.  530;  Fleury  z/.  Roget,  9  /?W>.  Pr.  215;  Flam- 
mer  v.  Kline,  Id.  216;   Hoxie  v.  Cushman,  7  N.Y.  Leg. 
Obs.  149.)     And  the  facts  stated  in  the  complaint  will 
be  deemed  admitted.     Nelson  v.  Murray,  23  Cal.  338. 

40.  A  denial  that  the  defendant  became  or  was  law- 
full^  bound  by  a  judgment  declared  on,  is  only  a  denial 
of  a  conclusion  of  law.     (People  v.  Supervisors  of  San 
Francisco,  27  Cal.  655.)     Nor  is  it  a  denial  in  an  action 


ANSWERS     IN     GENERAL.  66 1 

for  the  possession  of  personal  property  to  allege  that 
defendant  did  not  at  any  time  wrongfully  take  and  de- 
tain the  property  from  the  plaintiff.  (Richardson  v. 
Smith,  29  Cat.  529.)  Or  in  ejectment  that  defendant 
did  not  wrong/idly  and  unlawfully  enter  and  dispossess 
the  plaintiff.  This  is  an  admission  rather  than  denial. 
(Busenius  v.  Coffee,  14  Cal.  93;  Layz>.  Neville,  25  Cal. 
549.)  So,  a  denial  that  the  plaintiff  has  any  interest 
whatever  in  the  premises  mentioned  in  the  complaint  is 
insufficient.  (Bentley  v.  Jones,  4  How.  Pr.  202.)  So 
of  an  averment  that  "  the  plaintiff  is  not  the  real  party 
in  interest,  nor  is  he  an  executor,"  etc.  (Russell  v. 
Clapp,  3  Code  R.  64;  S.C.,  4  How.  Pr.  347.)  So  of 
an  answer  which,  without  deny  ing  any  fact  stated  in  the 
complaint,  merely  says  that  "  the  defendant  denies  that 
the  plaintiff  is  entitled  to  the  money  demanded." 
Drake  v.  Cockroft,  i  Abb.  Pr.  203;  and  compare  Hig- 
gins  v.  Freeman,  2  Duer,  650. 

41.  Where,  however,  the  allegation  of  the  plaintiff 
is  itself  couched  in  the  form  of  a  conclusion  of  law,  a 
denial  in  the  same  form  will  be  admissible,  and  efficient 
for, all  purposes.  (Morrow  v.  Cougan,  3  Abb.  Pr.  328; 
Anon.,  2  C.  ^.67;  Wagers.  Ide,  14  Barb.  468;  Davis 
v.  Hoppock,  6  Duer,  256;  McKnight  v.  Hunt,  3  Id. 
615.)  A  mixed  question  of  law  and  facts  was  under 
the  old  system  traversable.  (Steph.Pl.  19.)  With  certain 
limits  this  rule  is  applicable  to  the  present  system. 
(Dows  v.  Hotchkiss,  10  Leg.  Obs.  281.)  As  where 
plaintiff  alleged  that  defendant  owed  him  a  certain  sum, 
an  answer  denying  the  indebtedness  is  sufficient.  (Kin- 
ney  v.  Osborne,  14  Cal.  112;  Westlake  v.  Moore,  19 
Mo.  556.)  A  denial  which  is  itself  a  conclusion  of  law 
raises  no  issue,  as  where  ah  answer  states  in  general 


662  ANSWERS     IN     GENERAL. 

terms  that  a  municipal  ordinance  is  illegal  and  void. 
People  v.  Super,  of  San  Francisco,  27  Cat.  655. 

SHAM,    IRRELEVANT,    AND    FRIVOLOUS    ANSWERS. 

42.  Immaterial  averments  in  a  pleading  need  not 
be  denied.     (Racouillat  v.  Rene,  32  Cat.  450;    Toland 
v.  Sprague,  12  Pet.  300.)     And  if  it  be  done,  both  the 
complaint  and  answer,  so  far  as  they  relate  thereto,  will 
be  disregarded  when  the  sufficiency  of  the  pleadings  and 
issues  are  brought  in  question.     (Jones  v.  City  of  Peta- 
luma,  36  Cal.  220;  see,  also,  Fry  v.  Bennett,  i  Code  R. 
(JV.S.)  238;  St  Mark's  Fire  Ins.  Co.  v.  Harris,  13  How. 
Pr.  95.)    Such  was  the  rule  in  chancery.    (Utica  Ins.  Co. 
v.  Lynch,  3  Paige,  210.;    Wiswall  v.  Wandell,  3  Barb. 
Ck.  312.)   But  a  denial  of  immaterial  circumstances  may 
in  some  cases  be  treated  as  sufficient  at  the  trial,  if  not 
previously  objected  to.      Wall  v.  Buffalo  Water  Works 
Co.,  18  N.Y.  119. 

43.  Matter  not  well  pleaded  need  not  be  denied. 
(Society  for  the  Prop,  of  the  Gosp.  v.  Town  of  Pawlett, 
4  Pet.  480.)    For  if  a  defendant  denies  what  is  non- 
essential  in  the  averments  of  a  complaint,  it  is  an  admis- 
sion of  all  that  is  essential  to  a  recovery.     (Leffingwell 
v.  Griffing,  31  Cal.  231.)    For  examples,  see  (Landers  v. 
Bolton,  26  Id.  416;  Camden  v.  Mullen,   29  Id.  564.) 
And   the    denial    of    such   averments   is    unnecessary. 
Sands  v.  St  John,  23  How.  Pr.  140;  Fry  v.  Bennett,  5 
Sandf.  54;  9  L.O.  330;   i  C.  R.  (N.S.)   238;   Parshall 
v.  Tillon,  13  How.  Pr.  7;  Isham  v.  Williamson,  7  L.O. 
340;  Newman  v.  Otto,  ^.Sandf.  668;    10 L.O.  14;  Bar- 
ton v.  Sackett,  3  How.  Pr.  358;    i  C.  R.  96;  Do  van  v. 
Dinsmore,  33  Barb.  86;   20  How.  Pr.  503;  Fairchild  v. 


ANSWERS     IN     GENERAL.  663 

Ogdensburg  R.R.  Co.,  15  N.  Y.  337;  Simonton  v.  Win- 
ter, 5  Pet.  140;  Greathouse  v.  Dunlop,  3  McLean,  303; 
Hogan  v.  Ross,  13  How.  S.  Ct.  173.)  Non-issuable 
matter  need  not  be  traversed.  Harbeck  v.  Craft,  4 
Duer,  122;  Edgertonz/.  Smith,  3  Id.  614. 

44.  Hypothetical  allegations  in  an  answer  are  insuffi- 
cient.    (Weis  v.  Fanning,  9  How.  Pr.  543.)     But  where 
under  the  peculiar  circumstances  of  the  case,  as  payment 
could  not  be  directly  alleged,  it  might  be  stated  in  this 
way.     (E)ovan  v.  Dinsmore,  20  How.  Pr.  503;  Brown  v. 
Ryckman,  12  Id.  313.)     So,  in  order  to  avoid  the  cause 
of  action  alleged,  a  defendant  need  not  confess  it;  he  may 
aver  that  if  any  such  contract  was  made,  it  was  made 
jointly  with  others.      Taylor  v.  Richards,  9  Bosw.  679. 

45.  Averment  of  plaintiff's  belief  is  not  traversable. 
(Radway  v.  Mather,  5   Sand.  654;    Howell  v.  Fraser, 
i  Code  Rep.  (MS.)  270;   Patterson  v.  Caldwell,  i  Mete. 
Ky.  492;  Walters  v.  Chinn,  Id.  502.)      Allegations  an- 
ticipating a  defense  need  not  be  denied.     (Caufield  v. 
Tobias,    21    Cal.  349.)     Persons  who  make  contracts 
with  a   corporation   cannot    deny  its    legal    existence. 
(White  v.  Ross.  15  Abb.  Pr.  66;    East  River  Bank  v. 
Rogers,  7  Bosw.  494;  Mechanics'  Building  Association 
v.   Stevens,    5   Duer,    676;    Steam   Navigation  Co.  v. 
Weed,   17  Barb.  378;  Park  Bank  v.  Tilton,   15  Abb. 
Pr.  384.)     The  credit  given  on  an  account  in  the  com- 
plaint is  not  a  traversable  fact.      Hodgins  v.  Hancock, 

.  &  W.  120. 


46.  The  amount  of  damages  need  not  be  denied. 
(  Van  Santv.  PI.  249  ;  Lewis  v.  Coulter,  i  o  O.  St.  Rep.  ^5  1  .) 
So,  the  amount  of  damages  on  a  breach  of  covenant  need 
not  be  denied.  (Hackett  v.  Richards,  3  E.  D.  Smith,  1  3  ; 


664  ANSWERS     IN     GENERAL. 

Gilbert  v.  Rounds,  14  Haw.  Pr.  49;  Connoss  v.  Mier, 
2  E.  D.  Smith,  314;  McKenzie  v.  Farrell,  4  Bosw.  192; 
Molony  v.  Dows,  15  How.  Pr.  261;  Raymond  v.  Traf- 
farn,  12  Abb.  Pr.  52.)  So,  circumstances  of  aggravation 
are  not  traversable.  (Bates  v.  Loomis,  5  Wend.  134; 
Gilbert  v.  Rounds,  14  How.  Pr.  49;  Schnaderbeck  v. 
Worth,  8  Abb.  Pr.  37;  Lane  v.  Gilbert,  9  Id.  150.) 
Nor  allegations  of  special  damages,  unless  of  the  gist  of 
the  action.  (Moloney  v.  Dows,  1 5  How.  Pr.  265 ;  Perring 
v.  Harris,  2  M.  &  Rob.  5.)  In  Indiana,  matters  in 
mitigation  of  damages  only,  except  in  actions  for  libel 
and  slander,  cannot  be  specially  pleaded  or  set  up  in  the 
answer,  but  should  be  given  in  evidence  under  the  gen- 
eral denial.  Smith  v.  Lisher,  23  Ind.  500. 

47.  Allegations  of  matters  of  evidence  in  a  pleading 
are  not  issuable  facts.      If  the  answer  puts  in  issue  the 
ultimate  facts  resulting  from  the  evidence,  it  is  a  suffi- 
cient denial.    (Moore  z>.  Murdock,  26  Cat.  524;  Racouil- 
lat  v.  Rene,  32  Cat.  450.)  Where  plaintiff's  declaration 
averred  that  defendants  promised  to  pay  plaintiffs   as 
"the  heirs  of  C,"  a  denial  that  plaintiffs  were  the  heirs 
of  C.  was  held  bad,  as  not  denying  any  material  allega- 
tion.   (Chandler  v.  Chandler,  21  Ark.  95.)    Allegations 
of  intention  showing  express  malice  are  not  issuable 
facts.     Fry  v.  Bennett,  5  Sandf.  54;   Code  Rep.  S.  238. 

48.  The  denial  of  time  or  place  at  which  an  act  is 
alleged  to  have  been  done  is  frivolous,  where  time  or 
place  are  not  the  substance  of  the  action.     (Castro  v. 
Wetmore,   16  Cal.  379;  Kuhland  v.  Sedgwick,  17  Cat. 
123;  Livingston  v.  Hammer,  7  Bosw.  670;  Davison  v. 
Powell,  1 6  How  Pr.  467;  Baker  v.  Bailey,  16  Barb.  5.4; 
Salinger  v.  Lusck,  7  How.  Pr.  430.)     Value,  in  deten- 


ANSWERS     IN     GENERAL.  665 

tion  of  property,  should  not  be  denied.  (Connoss  v. 
Meir,  2  E.  D.  Smith,  314;  McKenzie  v.  Farrell,  4  Bosw. 
193;  Hackett  v.  Richards,  3  Id.  13;  Woodruff  v.  Cook, 
25  Barb.  505;  see,  however,  Archers.  Boudinet,  i  Code 
Rep.  (N~.S.)  373.)  The  denial  as  to  value,  being  based 
on  the  want  of  knowledge  or  information,  is  insufficient. 
(Kuhland  v.  Sedgwick,  17  Cat.  123.)  Such  a  denial  is 
evasive  of  the  issue  tendered.  (Humphreys  v.  McCall, 
9  Cat.  59;  Brown  v.  Scott,  25  Id.  194;  Vassault  v. 
Austin,  32  Id.  597;  Edwards  v.  Lent,  8  How.  Pr.  28; 
Ketcham  v.  Zerega,  i  E.  D.  Smith,  554;  Kellogg  v. 
Baker,  15  Abb.  Pr.  287;  Taylor  v.  Luther,  2  Sumn. 
228.)  In  a  verified  answer,  an  evasion  of  the  control- 
ling fact  in  issue  is  a  strong  circumstance  against  the 
defendant.  Bakers.  Baker,  13  Cat.  87. 

49.  A  denial  clearly  evasive  is  insufficient  to  raise 
an  issue.       (Beebe  v.  Marvin,  17  Abb.  Pr.  194;  Law- 
rence v.  Derby,   24  How.  Pr.  133;    15  Abb.  Pr.  346.) 
In  order  to  determine  whether  the  denials  of  an  answer 
are  evasive,  each  separate  denial  of  each  separate  alle- 
gation must  be  taken  by  itself.     If  the  answer  to  a  par- 
ticular allegation   is  a   denial  of  it,   and   there   is  no 
admission  in  the  answer  inconsistent  with  this  denial,  an 
issue  is  fairly  made.     Racouillat  v.  Rene,  32  Cal.  450. 

50.  An  answer  containing  a  different  version  of  the 
transaction  to  that  contained  in  the  complaint  is  not  a  de- 
nial;  (Wests'.  Amer.  Ex.  Bk.,  \^Barb.  176;)  as  it  does 
not  specifically  controvert  the  allegations  contained  in 
the  complaint.     (Wood  v.  Whiting,  21  Barb.  190;  Elton 
v.  Markham,  20  Barb.  343;   Gilbert  v.  Cram,  12  How. 
Pr.  455;  Levy  v.  Bend,  i  E.  D.  Smith,  169;  Hamilton 
v.  Hough,    13  How.  Pr.  14;  Whitlock  v.  McKetchnie, 


666  ANSWERS     IN     GENERAL. 

i  Bo&v.  427;  Isles  v.  Tucker,  5  Duer,  393;  Corwin  v. 
Corwin,  9  Barb.  219;  Loosey  v.  Orser,  4  Bosw.  392.) 
See,  as  to  its  implying  a  denial  of  plaintiff's  title  to 
relief,  (Peck  v.  Brown,  26  How.  Pr.  350.)  Where  a 
defendant  gives  a  different  version  of  the  matter  in  con- 
troversy, it  should  be  accompanied  by  a  specific  denial 
of  all  the  allegations  of  the  complaint  not  consistent 
with  the  allegations  in  the  answer.  See,  also,  Wood 
v.  Whiting,  21  Barb.  190;  compare  Dykers  v.  Wood- 
ward, 7  How.  Pr.  313. 

51.  A  denial  manifestly  inconsistent  with  state- 
ments of  fact  in  other  parts  of  the  same  pleading  is  bad. 
(Livingston  v.  Harrison,  2  E.  D.  Smith,  197.)     A  mere 
denial  of  interest  or  ownership  in  the  plaintiff  will  be 
insufficient  where  no  statement  of  fact  is  made  to  sus- 
tain it.      Russell  v.  Clapp,   7  Barb.  482 ;    4  How.  Pr. 
347;    3  C.  R.  64;    Catlin  v.  Gunter,   i  Dtier,  253;    n 
L.  O.  201. 

52.  So,  also,  allegations  in  an  answer  in  some  re- 
spects inconsistent  with  the  allegations  in  the  complaint, 
do  not  amount  to  a  denial.     (21   Barb.    190;  West  v. 
American  Ex.  Bank,  44  Barb.  175.)     Where  a  nega- 
tive  allegation    is    necessary   in   stating  the    cause  of 
action,  although  it  must,  of  course,  precede  an  averment 
by  the  opposite  party  of  the  fact  negatived,  it  neverthe- 
less constitutes  the  basis  of  the  issue  joined  by  the  sub- 
sequent averment,  and  the  latter  operates  as  a  traverse 
and  not  as  an  averment  of  new  matter.     Frisch  v.  Caler, 
21  Cat.  71. 

53.  A  denial  which  argumentatively  disputes  a  fact 
averred  in  the  complaint  is  demurrable,  as  the  traverse 


ANSWERS     IN     GENERAL.  667 

must  be  direct.  (Gallagher  v.  Dunlap,  2  Nev.  326; 
Mower  v.  Burdick,  4  McLean,  7;  Frisbee  v.  Lindley, 
23  Ind.  511.)  Denials  must  not  be  in  the  alternative, 
as  they  are  defective  in  form,  and  leave  it  uncertain 
what  is  denied.  (Otis  v.  Ross,  8  How.  Pr.  193;  Cor- 
bin  v.  George,  2  Abb.  Pr.  467.)  A  party  cannot  con- 
trovert the  declaration  he  has  made  by  deed.  (Tartar 
v.  Hall,  3  Cat.  263;  United  States  v.  Thompson,  i  Gall. 
388.)  Under  the  provision  of  Section  fifty  of  the 
Practice  Act,  denials  contained  in  an  answer,  which  do 
not  explicitly  traverse  the  material  allegations  of  the 
complaint,  may  be  stricken  out  on  motion,  as  sham  and 
irrelevant.  Tynan  v.  Walker,  35  Cal.  634. 

ADMISSIONS    TN    THE    ANSWER. 

54.  But  no  proof  is  required  of  facts  admitted,  or  not 
denied.     (Patterson  v.  Ely,  19   Cal.  28.)     But  where 
matter  is  not  well  pleaded  and  is  no  answer  to  the 
breach  assigned,  it  cannot  be  considered  an  admission 
of  the  cause  of  action  stated  in  the  complaint.     (So- 
ciety for  Propagating  the  Gospel  v.  Town  of  Pawlett,  4 
Pet.  480.)     An  admission  in  an  answer  is  not  avoided 
by  a  special  averment.      (Reed  v.  Calderwood,  32  Cal. 
109.)     Nor  is  an  admission  in  one  defense  available  on 
another  defense;  each  must  stand  by  itself.     Siter  v. 
Jewett,  33   Cal.  92;   Swift  v.  Kingsley,   24  Barb.  541. 

55.  When  a  defense  is  founded  on  a  written  instru- 
ment, and  a  copy  is  contained  in  the  answer  or  annexed 
thereto,   the   genuineness  and   due  execution  will   be 
deemed  admitted,  but  not  by  a  failure  to  controvert  the 
same  on  oath,  unless  the  plaintiff  be  permitted  to  in- 
spect  the    original.     (Cal.   Pr.  Act,    §    54.)     A   plea 


668  ANSWERS     IN     GENERAL. 

which  admits  the  execution  of  the  instrument,  and  sets 
up  matter  in  avoidance,  is  not  objectionable  as  amount- 
ing- to  the  general  issue.  Thomas  v.  Page,  3  McLean, 
167. 

56.  Where  the -answer  avers  that  defendant  has  in 
all  respects  faithfully  kept  the  terms  and  complied  with 
the  conditions  of  the  contract,  but  does  not  specifically 
deny  the  breaches  set  out  in  the  complaint,  if  not  de- 
murred to,  the  plaintiff  cannot  claim  that  the  allegations 
charging   certain   breaches   are   admitted.       (Loler  v. 
Cool,   37  Mo.  85.)       Proceedings   which  are   void  by 
reason  of  the  infirmity  of  the  statute  under  which  they 
are  had,  are  not  cured  by  an  averment  in  a  complaint 
that  they  were  duly  and  legally  had;  and  a  failure  to 
deny  the  averment  in  the  answer  is  not  an  admission 
that  the  proceedings  were  valid  or  legal.      People  v. 
Hastings,  29  Cat.  449.)     An  admission  by  an  attorney 
of  record  of  the  correctness  of  an  amount  due,  for  which 
judgment  is  taken,  when  not  done  in  fraud  of  the  rights 
of  his   client,   destroys  the  effect  of  a  denial    in   an 
answer.     Taylor  v.  Randall,  5  Cat.  76. 

ANSWER    NOT    EVIDENCE. 

57.  An   answer   responsive   to   and    denying   the 
charges  in  a  bill  of  equity  is  not  evidence  for  the  de- 
fendant.   (Goodwins.  Hammond,  13  CaL  198;  Bosticz>. 
Love,    1 6  Id.   69;   Blankman  v.   Vallejo,   15   Id.   638; 
Goodwin  v.  Hammond,  13  Id.  169.)     An  answer  under 
our  statute  is  not  proof  for  defendant,  but  an  admission 
in  the  answer  of  a  fact  stated  in  the  complaint  is  conclusive 
evidence  against  him.     (Fremont  v.  Seals,  18  Cat.  433; 
Blankman  v.  Vallejo,  15  CaL  638.)     Omission  to  plead 
a  defense  specially  is  not  cured  by  the  introduction  of 


ANSWERS     IN     GENERAL.  669 

evidence  without  objection  in  support  of  it.     Smith  v. 
Owen,  21  Cat.  u;  McComb  v.  Reed,  28  Cat.  289. 

VERIFICATION    OF    ANSWER. 

58.  An  answer  unverified   to  a  verified  complaint 
may  be  stricken  out  on  motion.     (Drum  v.  Whiting,  9 
Cat,  422.)     When  the  complaint  is  verified,  the  answer 
shall  be  verified  also;  (Cal.  Pr.  Act,  §  51 ;)  except  when 
the  admission  of  the  truth  of  the  complaint  might  sub- 
ject the  party  to  prosecution  for  felony  or  misdemeanor. 
(Cal   Pr.  Act,  §  52;  N.Y.  Code,  §  157.)     By  verifica- 
tion of  the  complaint  the  plaintiff  can  prevent  the  de- 
fendant from  interposing  a  general  denial  in  suits  on 
promissory  notes  or  bills  of  exchange,  by  requiring  a 
sworn  answer.     Brooks  v.  Chilton,  6  Cal.  640. 

59.  A  plea  that  denies  the  execution  of  the  instru- 
ment, when  required  to  be  sworn  to,  if  filed  without 
affidavit,  admits  the  execution  of  the  instrument,  but  may 
be  good  for  other  purposes.      Cal.  Pr.  Act,  §  53;  Horn 
v.  Volcano  Water  Co.,  13  Cal.  62;  McClintick  v.  John- 
ston, i  McLean,  414. 

60.  If  a  fact,  which  is  directly  averred   in  one  part 
of  a  verified  pleading,  is  in  another  part  directly  denied, 
whether  it  be  in  the  statement  of  several  causes  of  ac- 
tion in  a  complaint,  or  of  several  defenses  in  an  answer, 
the  party  verifying  it  is  guilty  of  perjury,  and,  on  the 
trial,  that  averment  which  bears  most  strongly  against 
the  pleader  will  be  taken  as  true.     (Bell  v.  Brown,  22 
Cal.    671.)     Verification  or   affidavit  to  a   plea   field, 
necessary  in  particular  cases.     Bullock  v.  Van  Pelt,  i 
Baldw.  463;  Contee  v.  Garner,  2   Cranch  C.  Ct.  162; 
Edmonson  v.  Barrell,  Id.  288;  Fenwick  v.  Grimes,   5 


6/O  ANSWERS     IN     GENERAL. 

Id.    603;    McClintick    v.    Cummins,    2    McLean,    98; 
Thomas  v.  Clark,  Id.  194;  Benedict  v.  Maynard,  6  Id.  21. 

61.  It  is  no  error  to  allow  the  defendant  to  verify 
his  answer  before  trial,  unless  it  is  shown  that  the  plaintiff 
is  thereby  taken  by  surprise.     (Angier  v.  Masterson,  6 
Cal.  6 1.)     To  a  complaint  verified  the  defendant  filed 
a   copy  of  the    original   verified   answer,  by  mistake. 
Parties  took  deposition  under  the  pleading,  and  subse- 
quently went  to  trial.     After  the  close  of  the  plaintiff's 
evidence,  his  counsel  then  for  the  first  time  brought  the 
mistake  to  the  notice  of  the  Court,  by  moving  for  judg- 
ment by  default,  which  motion  the  Court  sustained,  and 
refused  to  allow  defendant  to  then  verify  his  answer. 
Held,  that  the  Court  erred,  and  should  have"  allowed  the 
defendant  to  have  verified  his  answer.     Arrington  v, 
Tupper,  10  Cal.  464. 

NEW    MATTER. 

62.  Under  Section  forty-six  of  the  Code,  there  are 
only  two  classes  of  defense  allowed.    The  first  consists 
of  a  simple  denial ;  and  the  second,  of  the  allegation  of 
new  affirmative  matter.    And  as  the  Code  has  abolished 
all  distinctions  in  the  forms  of  action,  and  requires  only 
a  simple  statement  of  the  facts  constituting  the  cause 
of  action    or  defense,    these  two   classes  of  defenses 
must  be    the  same   in  all  cases.     (Piercy  v.  Sabin,  10 
Cal.    22.)    New    matter  is  where  defendant  seeks  to 
introduce  into  the  case  a  defense  not  disclosed  by  the 
pleadings,  and  is  such  as  defendant  must  affirmatively 
establish.    (Id.;  Bridges  .v.  Paige,    13  Cal.  640.)    Such 
matter  must  be  specially  pleaded.     Coles  v.  Soulsby, 
21  Cal.  47;  Morrill  v.  Irving  Ins.  Co.,   33  N.Y.  429. 


ANSWERS     IN     GENERAL. 

63.  The   Code   makes   no  difference  in  the  classes 
of  new  matter,  for  whatever  admits,  either  directly  or 
by  way  of  necessary  implication,  that  a  cause  of  action 
as  stated  in  the  complaint  once  existed,  but  at  the  same 
time  avoids  it  and  shows  that  it  has  ceased  to  exist, 
is  new  matter.     (Coles  v.  Soulsby,  21  Cal.  47;  Piercy 
v.  Sabin,  10  Cal.  22;  Glazier  v.  Clift,  Id.  303;  Gilbert  v. 
Cram,  12  How.  Pr.  455;  Raddle  v.  Ruckgaber,  3  Duer, 
685 ;  Brazil  v.  Isham,  2  Kern.  1 7 ;  Bellinger  v.  Craigue, 
21    Barb.   537;    Carter  v.  Koezley,  \^  Abb.  Pr.   147; 
Walrod  v.  Bennett,   6  Barb.    144.)      But  if  the  facts 
averred  in  the  answer  only  show  that  some  essential 
allegation  of  the  complaint  is  untrue,  then  they  are  not 
new  matter,  but  only  a  traverse.     Goddard  v.  Fulton, 
21  Cal.  430. 

64.  The  Code  provides  that:  Second,  The  complaint 
shall  contain  a  statement  of  matter  in  avoidance,   a 
counter  claim  constituting  a  defense,   or  the   subject 
matter  of  cross  complaint,  which  may  entitle  the  defend- 
ant to  relief  against  the  plaintiff  alone,  or  against  the 
plaintiff  and  a  co-defendant.      Cal.  Pr.  Act,  §  46;  Code 
of  N.¥.   §  149;    Oregon,  §  71;    Ohio,  §  92;    Arizona, 
§  46;    Wash.    Terr.  §  58;  Idaho,  §  46;  3   Paige,   210; 
8  Barb.   189,   250;  3  Sandf.  738;  8  How.  Pr.  193;   14 
Barb.    533;     i     Van    Santv.    PI.    p.    452;     2     Whitt. 
Pr.  149. 

65.  The  answer  must  allege  those  facts  which  when 
the   case   of  the  plaintiff  is  admitted  or  proved,   the 
defendant  must  prove   in  order  to   defeat  a  recovery. 
Piercy  v.  Sabin,  10    Cal.  22;  Glazier  v.  Clift,  Id.   303; 
Catlin  v.  Gunter,  i  Duer,  266;  Ayrault  v.  Chamberlin, 
33  Barb.  237;  Carter  v.  Koezley,    14  Abb.  Pr.    147; 


672  ANSWERS     IN     GENERAL. 

Jacobs  v.  Rensen,  12  Abb.  Pr.  390;  Pier  v.  Finch,  29 
Barb.  170;  Rapalee  v.  Stewart,  27  N.Y.  310;  Fry  v. 
Bennett,  28  N.Y.  324;  Morrell  v.  Irving  Fire  Ins.  Co., 
33  N.Y.  429;  Simmons  v.  Law,  8  Bosw.  213;  Dingle- 
dein  v.  Third  Av.  R.R.  Co.,  9  Bosw.  79;  Beatty  v. 
Swarthout,  32  Barb.  293;  Savage  v.  Corn  Exch.  Ins. 
Co.,  4  Bosw.  2 ;  Horton  v.  Rushling,  3  Nev.  498. 

66.  Such  allegations  must  be  affirmatively  established ; 
therefore  if  the  onus  of  proof  is  thrown  upon  the  defend- 
ant, it  is  new  matter.  (Thompson  v.  Lee,  8  Cat.  275; 
Piercy  v.  Sabin,  10  Cal.  22;  Glazier  v.  Clift,  Id.  303.) 
For  under  the  statute  of  California,  the  affirmative 
allegations  of  an  answer  stand  controverted  by  the 
plaintiff,  and  the  burden  is  on  defendant  to  prove  the 
truth  of  such  allegations.  (Bryan  v.  Maume,  28  Cal. 
238.)  To  admit  evidence  of  such  new  matter,  therefore,  it 
must  be  specially  pleaded.  Walton  v.  Minturn,  i 
Cal.  362;  Piercy  v.  Sabin,  10  Cal.  30;  Andrews  v. 
Bond,  10  Barb.  633;  Baker  v.  Bailey,  16  Id.  57;  Buck- 
man  v.  Brett,  1 3  Abb.  Pr.  119;  Button  v.  McCauley, 
38  Barb.  413;  Diefendorff  v.  Gage,  7  Barb.  18;  Dewey 
v.  Hoag,  1 6  Id.  365;  Fay  v.  Grimstead,  10  IcA.  321; 
Field  v.  Mayor  of  N.Y.,  2  Seld.  179;  Johnson  v.  Mcln- 
tosh,  31  Barb.  267;  Kelsey  v.  Western,  2  Corns.  501; 
McKyring  v.  Bull,  16  N.Y.  297;  N.Y.  Cent.  Ins.  Co.  v. 
Nat.  Pro.  Ins.  Co.,  20  Barb.  468;  Sandford  v.  Travers, 
7  Bosw.  497;  Wright  v.  Delafield,  25  N.Y.  266. 

67.  Affirmative  allegations  in  the  answer,  in  effect 
only  denials,  are  not  new  matter.  (Goddard  v.  Fulton, 
21  Cal.  430;  Woodworth  v.  Knowlton,  22  Id.  164.) 
For  new  matter  confesses  and  avoids  expressly  or 
impliedly  the  cause  of  action  set  up  in  the  complaint. 


ANSWERS    IN    GENERAL.  673 

(Simonton  v.  Winter,  5  Pet.  140;  Greathouse  v.  Dun- 
lap,  3  McLean,  303;  Gregory  v.  Trainor,  4  E.  D.  Smith, 
58;  Annibal  v.  Hunter,  6  How.  Pr.  255;  i  Code  R. 
(IV.  S.)  403;  Sayles  v.  Wooden,  6  How.  Pr.  84;  i 
Code  R.  (JV.S.)  409;  Porter  v.  McCreedy,  i  Code  R. 
(MS.)  88;  Lewis  v.  Kendall,  6  How.  Pr.  59;  Arthur 
v.  Brooks,  14  Barb.  533.)  An  answer  or  a  count 
seeking  to  avoid  the  cause  of  action  stated  in  the  com- 
plaint by  new  matter,  should  confess,  directly  or  by 
implication,  that,  but  for  the  new  matter,  justification,  or 
avoidance,  the  action  could  be  maintained.  Anson  v. 
D  wight,  1 8  Iowa,  241. 

68.  It  is  essential  to  the  sufficiency  of  an  answer  stat- 
ing new  matter  as  a  defense  that  it  state  facts  which,  if 
true,  will  bar  the  action,  or  so  much  of  it  as  is  attempted  to 
be  answered.     (Carter  v.    Koezley,   9  Bosw.  (JV.Y.) 
1,583.)     A  special  plea,  containing  new  matter,  but  with 
no  appropiate  conclusion,  is  bad  upon  special  demurrer. 
(Leslies.   Harlow,  18  N.H.  5i8.)     New  matter  occur- 
ring after  issue  joined  must  be  set  up  by  supplemental 
answer.     (Jessup  v.  King,  4  Cat.  331.)     A  levy  by  a 
sheriff  set  forth  in  the  answer  as  a  defense  is  new  matter. 
Mulford  v.  Estudillo,  23  Cat.  94. 

WHAT    MUST 'BE    SPECIALLY    PLEADED. 

69.  Abandonment  of  land.  (30  Cal.  192;  26  Cat.  266.) 
Abatement.     (3  Cal.  348;   10  Cal.  555.)   As  of  another 
action  pending.    (29  Cal.  314;  30  Cal.  325;  10  Cal.  522; 
3  Cal.  438;   14  Cal.  39;   24  Cal.  73.)     Accord  and  sat- 
isfaction.   '(10  Cal.  30;  21  Cal.  47.)     Pleas  in  justifica- 
tion, as  an  attachment  or  execution.    (7  Cal.  554;  15  Cal. 
66;   10  Cal.  303;  21  Cal.  47;   12  Cal.  73;  22  Cal.  650; 

43 


674  ANSWERS    IN    GENERAL. 

29  Cal.  529;  28  Cat.  281.)  Composition  with  creditors 
should  be  specially  pleaded.  (21  Cal.  n)  A  counter 
claim  should  be  specially  pleaded.  (9  Cal.  74.)  So 
of  disclaimers.  (14  Cal.  576;  27  Cal.  331.)  Equitable 
titles,  defenses,  and  estoppels.  (25  Cal.  597;  30  Cal. 
439;  23  Cal.  354;  24  Cal.  146,  124.)  Eviction  must  be 
specially  pleaded.  (10  Cal.  30.)  So,  former  recovery 
(27  Cal.  358;  32  Cal.  176)  must  be  specially  set  up  in 
the  answer. 

70.  Fraud  (27  Cal.  656)  must  be  specially  pleaded. 
So,  a  grant  of  an  easement  or  servitude.     (27  Cal.  368.) 
New  matter  must  be  specially  pleaded.     (21  Cal.  47.) 
Payment.    (21  Cal.  47,  71;  10  Cal.  30.)    That  plaintiff  is 
not  the   real   party   in   interest.     Release.     (17    Cal. 
431;  21    Cal.  50.)     Statute  of  Frauds.     (6   Cal.  149.) 
Statute  of  Limitations.     (23  Cal.  16;  27    Cal.  278;  19 
Cal.  476;  2    Cal.   409.)     Subsequently  acquired  title. 
(30    Cal.   468.)     Tax  titles.      (22    Cal.    132;  27    Cal. 
246.)     Unworkmanlike    manner   of  doing   work.      (i 
Cal.  371.)     Want   of  capacity  to  sue.     (8  Cal.  585.) 
That  items  are  overcharged  in  an  account.     (13  Cal. 
427.)     Prior  claim  to  water  in  a  third  person  must  be 
specially  pleaded.     9  Cal.  59. 

MATTER    IN    AVOIDANCE. 

71.  The  cases  are  so   numerous  where  defendant 
should  specially  plead  matters  in  avoidance  or  estoppel, 
that  it  is  scarcely  possible  to  make  more  than  a  refer- 
ence to  those  coming  under  this  general  proposition. 
Matters  in  avoidance  must  be  specially  pleaded;    they 
cannot  be  used  as  defenses,  under  an  answer  which  is  a 
simple  denial  of  the  allegations.     (Gaskill   v.  Moore, 


ANSWERS    IN    GENERAL.  675 

4  Cal.  233.)  Matter  of  avoidance  arising  since  suit 
brought,  but  pleaded  at  the  first  term  at  which  the  de- 
fendant appears,  need  not  be  pleaded  puis  day-rein  con- 
tinuance. '  (Cutter  v.  Folsom,  17  N.H.  139.)  Such 
a  plea  (Davenport  v.  Mitchell,  15  Iowa,  194)  must 
have  the  same  certainty  as  to  time  and  place  as 
other  pleas,  and  if  it  does  not  allege  the  day  on  which 
the  matter  pleaded  happens,  it  is  bad.  Cummings  v. 
Smith,  50  Maine,  568. 


72.  A  plea/^'^  darrein  continuance  is  a  relinquish- 
ment  of  all  preceding  pleas;   (Tanner  v.  Robers  i  Mo. 
416;)    and   its  allowance    is   in  the  discretion   of  the 
Court.     (Nettles  v.  Sweazea,  2  Mo.  100;  Thomas  v. 
Van  Doren,  6  Mo.  201;  Cummings  v.  Smith,  50  Maine, 
568.)     The  plea  puis  darrein  continuance  is  a  relin- 
quishment  of  all  preceding  pleas,     (i  Burr.  Pr.  424; 
26  Vt.  305;  Tanner  v.  Roberts,  i  Mo.  416;  Wallace  v. 
McConnell,   13  Pet.   U.S.   136;  Yeaton  v.  Lynn,  5  Id. 
223;  Stafford  v.  Woodruff,  2  McLean  U.S.  191;  Good 
v.  Davis,  Hempst.   U.S.   16;  Wisdom  v.  Williams,  Id. 
460.)     When  this  plea  is  adjudged  bad  on  demurrer, 
judgment  is  final  against  the  defendant.     McKeen  v. 
Parker,  51  Maine,  389. 

PLEAS    IN    ABATEMENT. 
• 

73.  A  plea  in  abatement  defeats  the  present  pro- 
ceeding; (i  Chitt.  145;)  but  a  plea  in  bar  goes  to  the 
merits,  and  admits  that  plaintiff  once  had  a  right  of  ac- 
tion, but  insists  that  it  is  determined,     (i    Chitt.  469.) 
And  an  answer  in  abatement,  when  taken  with  a  plea  in 
bar,  cannot  be  made  available.     (Spencer  v.  Lapsley, 
20  How.    U.S.  264;  King  v.  Vanderbilt,  7  How.  Pr. 


676  ANSWERS    IN    GENERAL. 

385;  Monteith  v.  Cast,  i  Smith's  Com.  PI.  R.  112; 
Andrews  v.  Thorp,  Id.  615;  contra,  see  Bridge  v.  Pay- 
son,  5  Sand.  210;  followed  by  Sweet  v.  Tuttle,  10  How, 
Pr.  40;  and  Mayhew  v.  Robinson,  10  How.  Pr.  162.) 
The  matter,  however,  is  left  in  some  doubt.  See 
Bridge  v.  Payson,  i  Duer,  614. 

74.  It  is  a  bad  mode  of  pleading  to  unite  pleas  in 
abatement,  and  pleas  to  the  merits,  and  if,  after  pleas 
in  abatement,  a  defense  be   interposed  going  to  the 
merits  of  the  controversy,  the  grounds  alleged  in  abate- 
ment   become   thereby    immaterial,  and   are   waived. 
(Sheppard  v.  Graves,   14  How.  U.S.  505;    Fenwick  v. 
Grimes,  5  Cranch  C.  Ct.  603.)     Where  there  is  a  plea 
to  the  merits,  and  issue  joined  thereon,  and  the  parties 
go  to  trial  accordingly,  irregularities  previously  set  up 
by  pleas  in  abatement,   and  demurrers  to  them,  are 
waived.     (Bell  v.  R.R.  Co.,  4  Wall.  U.S.  598;  and  see 
Fenwick  v.  Grimes,  5  Cranch  C.  Ct.  603.)     But  a  plead- 
ing in  abatement  does  not  waive  a  defense  on  the 
merits    contained   in   the   same   answer.      Gardner  v. 
Clark,  21  N.Y.  399;  overruling  S.C.,  6  How.  Pr.  449. 

75.  Matter  in  abatement  which  merely  defeats  the 
present  proceeding  must   be  specially  set   up   in  the 
answer,  with  such  particularity  as  to  exclude  every  con- 
clusion to  the  contrary.     (Hentsch  v.  Porter,  10  Cal. 
555;  Toombs  v.  Randall  3   Cal.  438.)     Such  pleas  are 
not  favored.     The  party  pleading  them  relies  on  tech- 
nical law  to  defeat  the  plaintiff's  action,  and  is  held  to 
"technical  exactness  in  his  pleading."     Thompson  v. 
Lyon,  14  Cal.  42;  Anoymous,  Hempst.  215. 

76.  The  answer  to  a  complaint  for  damages  for 


ANSWERS    IN    GENERAL.  677 

breach  of  a  contract  contained  two  defenses:  the  first 
to  the  merits  of  the  action;  the  second  set  up  that  cer- 
tain four  other  persons  were  joint  contractors  with  the 
defendant,  in  making  the  contract  sued  on.  The  plaintiff 
moved  that  the  second  defense  be  stricken  out,  on  the 
ground  that  it  contained  onjy  matter  in  abatement, 
which  was  waived  by  putting  in  an  an  answer  on  the 
merits.  Held,  following  Gardner  v.  Clark,  6  How.  Pr. 
R.  449;  King  v.  Vanderbilt,  7  Id.  385;  Smith  v. 
Compton,  7  Dist.,  Gen.  T.,  June  1855,  M.  S.;  Zabriskie 
v.  Smith,  3  Kern,  322;  and  disapproving  of  Sweet  v. 
Tuttle,  10  How.  Pr.  R.  40;  Mayhew  v.  Robinson,  10 
Id.  162;,  Bridge  v.  Payson,  5  Sandf.  210. 

77.  A  defense  consisting  of  matter  in  abatement 
only,  and  which  is  not  a  bar  to  the  action,  cannot  be 
set  up  in  an  answer  containing  matter  in  bar  of  the 
action.     The  question  is  simply  one  of  the  order,  not 
of  the  form  "  of  pleading."  That  each  defense  or  counter 
claim  must  refer  to  "  the  causes  of  action  which  it  is  in- 
tended to  answer,"  shows  that  the  defenses  contemplated 
in  that  section  are  defenses  to  the  cause  or  causes  of 
action  stated  in  the  complaint,  and  nothing  else.     Van 
Buskirk  v.  Roberts,  14  How.  Pr.  61. 

PLEAS    IN    BAR. 

78.  Wherever  the  subject  matter  of  the  plea  or 
defense  is,  that  the  plaintiff  cannot  maintain  any  action 
at  any  time,  whether  present  or  future,  in  respect  of 
the  supposed  cause  of  action,  it  may  and  usually  must 
be  pleaded  in  bar,  and  must  be  specially  set  up;  but 
matter  which  merely  defeats  the  present  proceeding, 
and  does  not  show  that  the  plaintiff  is  forever   con- 
cluded,   should   in   general   be  pleaded  in  abatement. 


678  ANSWERS    IN    GENERAL. 

(Hentsch  v.  Porter,  10  Cal.  555.)  Where  a  plea  in 
answer  is  but  notice  of  special  matter  by  way  of  abate- 
ment, and  goes  to  but  part  of  the  cause  of  action,  it 
cannot  be  relied  on  as  a  plea  in  bar.  United  States  v. 
Dashiel,  4  Wallace  U.S.  182;  Leslie  v.  Harlow,  18 
N.H.  518;  Feaster  v.  Woodfid,  23  Ind.  493;  Fitzsim- 
mons  v.  City  etc.  Ins.  Co.,  18  Wis.  234. 

79.  It  is  not  a  sufficient  objection  to  the  plea,  that 
it  avers  that  the  obligation  was  obtained  from  him  by 
fraudulent  representations,  or  that  it  concludes  with  a 
general  prayer  for  judgment.     Pleas  in  bar  are  not  to 
receive  a  narrow  and  merely   technical    construction, 
but  are  to  be  construed  according  to  their  entire  sub- 
ject-matter.     In    this    respect   there    is    a    difference 
between  pleas  in  bar  and  pleas  in  abatement.    (Withers 
v.   Greene,   9  How.    U.S.   213.)     Upon  a  hearing  on 
issue  on  a  plea  in  bar  to  a  bill  in  chancery,  no  ques- 
tion arises  as  to  the  sufficiency  of  the  plea  in  point  of 
law;  it  is  only  necessary  to  be  proved  in  point  of  fact. 
(Hughes  v.  Blake,  i  Mas.   515.)     Pleas  in  bar,  which 
seek  to  avoid   the  equity  of  the  case,  are  not  to  be 
favored.     See  Piatt  v.  Oliver,  1 1  McLean,  295. 

80.  An  answer  setting  up  in  bar  to  a  whole  cause 
of  action  a  matter  which  constitutes  a  bar  to  only  a 
part  of  it,    is  bad.     (Piatt  v.  Oliver,  i  McLean,    295; 
Lewis  v.  Baird,  3  Id.  56;  Milligan  v.  Milledge,  i  Mc- 
Lean, 295;  McDougle  v.  Gates,  21  Ind.  U.S.6$\  Louis 
v.    Arford,    Id.    235;  McClintic   v.  Cary,    22    Id.    170; 
Richardson  v.  Hickman,   Id.  244;  Postmaster- General 
v.  Reeder,  4  Wash.  C.  Ct.  678;  Culbertson  v.  Wabash 
Navigation  Co.,  4  McLean,   544;  and  see   Parker  v. 
Lewis,  Hempst.  72;  Peyatte  v.  English,  Id.  24.)  Where 


ANSWERS    IN    GENERAL.  679 

there  are  several  items  in  a  plea  in  bar,  there  must  be 

enough  items  in  the  whole,  each  one  well  pleaded,  to 

meet  the  whole  of  the  demand.  Mullanphy  v.  Phillip- 
son,  i  Mo.  1 88. 

81.  An  error  in  the  prayer  for  judgment  in  a  plea 
in  bar  will  not  prevent  the  rendition  of  the  judgment 
appropriate  to  the  substance  of  the  plea,  confessed  by 
general  demurrer.     (Withers  v.  Greene,  9  How.    U.S. 
213.)     A  plea  to  a  bill  in  equity  may  be  good  in  part, 
and  not  so  in  the  whole ;  and  the  Court  will  allow  it  as 
to  so  much  of  the  bill  as  it  is  properly  applicable  to, 
unless  it  has  the  vice  of  duplicity  in  it.     (Kirkpatrick  v. 
White,  4  Wash.  C.  Ct.  595.)    So,  if  any  one  of  several 
pleas,  going  to  the  whole   merits  of  the   case,  is   well 
pleaded,   and   contains  a  full    and   sufficient   answer,  it 
will   entitle   the    defendant   to  judgment.       Brown   v. 
Duchesne,  2  Curt.  C.  Ct.  97;  Vermont  #.  Soci.  for  Prop., 
2  Paine,  545. 

EFFECT  OF  SPECIAL  PLEAS. 

82.  A  plea  to  the  merits  is  a  waiver  of  all  pleas  in 
abatement  subsequent  to  it.     (Winter  v.  Norton,  i  Or. 
42,    Gossling  v.  Broach,  i   Hilt.  49;   Potter  v.  Smith, 
7  Rhode  Island,  55;   Potter  v.  James,  Id.  313;    Fugate 
v.  Glasscock,  7  Mo.  577.)     And  of  all  former  irregular- 
ities.   (Bell  v.  Railroad  Co.,  4  Wall  U.S.  598.)     Hence 
it  is  too  late  to  object  that  a  writ  has  no  seal  after  the 
defendant  has  pleaded  to  its  merits.   (7  R.I.  312.)   Or  to 
a  mistake  in  the  writ,  or  variance  between  the  count  and 
the  writ,  which  must  be  taken  advantage  of  by  a  plea  in 
abatement.      (Chirac    v.    Reinicker,    n     Wheat.    280; 
McKenna  v.  Fisk,    i  How.  Pr.  241;    compare  Miller 


68O  ANSWERS    IN    GENERAL. 

v.  Gages,  4  McLean,  436;  Burrow  v.  Dickson,  i 
Overt.  366.)  It  cannot  be  taken  advantage  of  on  gen- 
eral demurrer.  (Duvall  v.  Craig,  2  Wheat.  45;  Wilder 
v.  McCormick,  2  Blatchf.  3 1 ;  Triplet  v.  Warfield,  2 
Cranch  C.  Ct.  237.)  Nor  by  motion  in  arrest  of  judg- 
ment. (Wilson  v.  Berry,  2  Cranch  C.  Ct.  707.)  So  of 
omission  to  indorse  writ.  (Miller  v.  Gages,  4  McLean 
U.S.  436.)  In  California,  the  remedy  for  such  variance 
is  by  motion. 

83.  If  a  party  fail  to  plead  matter  in  bar  to  the  original 
action,  and  judgment  pass  against  him,  he  cannot  after- 
wards plead  it  in  another  action  founded  on  that  judg- 
ment, nor  in  a  scire  facias.     'Dickson  v.  Wilkinson,  3 
How.  US.  57. 

84.  Special  pleas,  the  averments  of  which  amount 
only  to  the  general  issue,  are  bad.      (Matthews  v.  Mat- 
thews, 2  Curt.  C.  Ct.  105;   Halsted  v.  Lyon,  2  McLean 
U.S.  226;    Dibbles.  Duncan,  Id.  553;  Curtis  v.  Central 
Railway,  6  Id.  401;  Parker  v.  Lewis,  Hempst.  U.S.  72; 
Vowell  v.  Lyles,  i  Cranch   C.  Ct.  329;  Liter  v.  Creen, 
2  Wheat.  U.S.  306;  Van  Ness,  v.  Forest,  8  Cranch  U.S. 
30.)      A  special  plea,  simply  a  traverse  of  a  portion  of 
the  facts  which  plaintiff  is  bound  to  prove  to  establish  a 
prima  facie  right  to  recover,  is  bad,  as  amounting  to  the 

general  issue.  (Knoebel  v.  Kirchet,  33  ///.  308.)  In 
Alabama,  it  is  no  objection  that  a  special  plea  presents 
matter  of  defense  available  under  the  general  issue, 
which  is  also  pleaded.  Hopkinson  v.  Shelton,  i  Ala. 
S.C.  303. 

85.  Bad  pleas  which  are  cured  by  verdict  are  those, 
which,  although  they  would  be  bad  on  demurrer,  be- 


ANSWERS    IN    GENERAL.  68 1 

cause  wrong  in  form,  yet  still  contain  enough  of  sub- 
stance to  put  in  issue  all  the  material  points  of  the 
declaration.  (Garland  v.  Davies,  4  How.  U.S.  131.) 
Where  the  pleas  are  bad,  they  should  be  demurred  to 
by  the  plaintiff,  and  not  traversed;  but  after  the  verdict 
of  the  jury,  the  same  effect  will  be  given  to  them  as  if 
they  had  been  demurred  to;  and  they  are  not  aided  by 
the  fact  that  immaterial  issues  tfiave  been  %  formed  upon 
them,  and  found  for  the  defAlant.  (Tarns  v.  Lewis, 
42  Penn.  402.)  Where  an  a^rjaient  in  a  plea  purports 
to  be  made  by  the  plaintiff,  inSread  of  the  defendant,  it 
is  bad  on  demurrerr.  Barclay  v.  Ross,  32  ///.  211. 


CHAPTER  II. 

FORMS    OF    DENIALS    IN    ANSWER. 

No.  552. 

i.    General  Denial — Positive. 
[TITLE.] 

The  defendant  answers  [or,  if  only  part  of  the  de- 
fendants join,  the  defendants  A.  B.  and  C.  D.  answer] 
to  the  complaint: 

That  no  allegation  thereof  is  true  [or  that  he  denies 
generally  and  specifically  each  and  every  allegation  in 
the  plaintiff's  complaint  contained.] 

1.     Copyright  Law. — Persons  sued  for  any  matter,  act,  or  thing 
done  under  the  copyright  law,  may  plead  the  general  issue,  and  give 


682  FORMS    OF    DENIALS. 

the  special  matter  in  evidence.     Act  of  Congress,  Feb.  3,  1831,  §  10; 
4  S/a/.  at  L.  438;   I  Bright.  196. 

2.  Debt. — In  an  action  on  an  indebtedness,  the  defendant,  under 
the  general  denial,  may  prove  that  he  was  never  indebted  at  all,  or  that 
he  owes  less  than  is  claimed,  or  that  services  were  rendered  as  a  gra- 
tuity, in  whole  or  in  part,  or  that  plaintiff  had  himself  fixed  a  less  price 
for  his  services  than  he  claims  to  recover.  (Schermerhorn  v.  Van  Allen, 
1 8  Barb.  29;  Andrews  v.  Bond,  16  Barb.  633.)  Denial  of  indebted- 
ness alleged  in  th,e  complaint  bfeld  available  as  equivalent  to  plea  of  nil 
debit.  Simmons  v.  Sisson,  26  Rl*.  264. 


3.  Definition. — A  genei^Jlenial  is  a  denial  in  gross  of  all  the 
allegations  of  the  complaint.      (Dennison  v.  Dennison,   9  How.  Pr. 
246;  Seward  v.  Miller,  6  Id.  312.)     Such  a  denial  only  puts  in  issue 
the  allegations  of  the  complaint.     Glazier  v.  Clift,  10  Cal.  303;  Coles 
v.  Soulsby,  21  Cal.  47. 

4.  Evidence,  Admission   of. — Under  the  general  denial  au- 
thorized by  the  Code,  evidence  of  a  distinct  affirmative  defense  is  not 
admissible.     The  defendant  is  limited  to  contradicting  the  plaintiff's 
proof,  and  disproving  the  case  made  by  him.     Beatty  v.  Swarthout,  32 
Barb.  293. 

5.  Form  of  Denial. — The  mere  form  of  the  denial  is  not  ma- 
terial, provided  it  directly  traverses  the  allegation  which  it  is  intended 
to  meet.     (Hill  v.  Smiih,  27  Cal.  476.)     Thus,   negative  averments 
may  be  employed.      (Channon  v.  San  Francisco,  Cal.  Sup.  C/.,  Jul. 
T.,  1869).     A  general  denial,  which  "  denies  each  and  every  allegation 
alleged  in  said  complaint,"  is  sufficient.    (Kellogg  v.  Church,  4  OhioPr. 
R.  339;  Dennison  v.  Dennison,  9  How.  Pr.  246;   Rosenthral  v.  Brush, 
i  Code  R.(N.S.}  228;    Seward  v.  Miller,    6  How.  Pr.  312.)     But  a 
denial  of  each  and  every  material  allegation  of  complaint  is  bad,  as 
being  evasive.     (Mattison  v.  Smith,  19  Abb.  Pr.  288.)    The  legal  effect 
of  such  denials  is  not  changed  by  expressions  showing  that  they  were 
intended   to   be   specific.      (Hensley  v.  Tartar,   14  Cal.  508.)      The 
denial  should  not  be  of  "  all  the  allegations,"  but  of  "  each  and  all,"  or, 
"  each  and  every,"  and  a  denial  of  all  the  material  allegations,  though 
good  on  demurrer,  is  not  sufficiently  certain  and  specific.     (Lewis  v. 
Coulter,  10  Ohio  St.  451.)     "That  no  allegation  thereof  is  true,"  was 
recommended  by  the  Code  Commissioners  of  New  York.     See  Report, 
p.  128,  for  the  reasoning  thereon.     ''  Denies  each  and  every  allegation 


FORMS    OF    DENIALS.  683 

in  said  complaint  contained,  not  herein  specifically  admitted  or  specifi- 
cally controverted,"  was  sustained  in  Parshall  v.  Tilton,  13  Hoiu.  Pr, 
7;  Hunt  v.  Bennett,  4  E.  D.  Smith,  647;  Daison  v.  Schermerhorn,  i 
Barb.  480. 

6.  How  to  Deny. — There  are  but  two  forms  in  which  a  defend- 
ant can  controvert  the  allegations  of  a  verified  complaint:   First,  Posi- 
tively, when  the  facts  are  within  his  personal  knowledge;  and,  Second, 
Upon  information  and  belief,  when  they  are  not.      Curtis  v.  Richards, 
9  CaL  33;  Gas  Company  v.  San  Francisco,  Id.  453;  Kellogg  v.  Church, 
4  How.  Pr.  349;  Ruddle  v.  Ruckgaber,  3  Duer,  684. 

7.  Rent. — Defendant  may  prove  an  eviction  on  a  claim  for  rent 
in  arrear,  under  the  plea  nil  debit,  or  general  denial.     (McLaren  v. 
Spaulding,  2  Cal.  510;  overruled  in  Piercy  v.  Tobin,  10  CaL  30.)    And 
consequently  an  eviction  must  be  set  up  in  the  answer. 

8.  When  Allowed. — A  defendant,  after  specifically  admitting 
some  of  the  allegations,  may  make  a  general  denial  as  to  the  rest; 
(Parshall  v.  Tillou,  13  How.  Pr.  7;   Blaisdell  v.  Raymond,  6  Abb.  Pr. 
148;    5  Id.   144;    Genessee  Mut.   Ins.  Co.   v.  Moynihen,   5  Id.  321; 
Smith  v.  Wells,  20  How.  Pr.  158,  144;  6  Id.  148;)  or  as  to  all  within 
certain  specified  folios.     Gassett  v.  Crocker,  9  Abb.  Pr.  39;  Blake  v. 
Eldred,  18  How.  Pr.  240. 

9.  When  Essential. — Where  the  facts  alleged  were  presump- 
tively within  the  defendant's  knowledge,  he  must  admit  or  deny  posi- 
tively, unless  there  be  something  special  in  the  circumstances  of  the  case. 
(Thorn  &  Maynard  v.  The  New  York  Mills,  10  How  Pr.  19;  Vassault 
v.  Austin,  32   CaL  597;  Humphreys  v.  McCall,  9  CaL  59;  Brown  v. 
Scott,  25  CaL   194;  Nichols  v.  Jones,  6  How.  Pr.  355;  Sherman  v. 
N.Y.  Cent.  Mills,  i  Abb.  Pr.  187;  Thorne  v.  The  Same,  10  How.  Pr. 
19;  Lewis  v.  Acker,  n  How.^Pr.  163;  Edwards  v.  Lent,  8  How.  Pr. 
28;  Fales  v.  Hicks,  12  How.  Pr.  153;  Slater  v.  Maxwell,  6  Wall.  U.S. 
268;  Chapman  v.  Palmer,  12  How.  Pr.  38;  Lewis  v.  Acker,  n  How. 
Pr.  163;  Buddington  v.  Davis,  6  How.  Pr.  401;  Sayles  v.  Wooden, 
Id.  84;  Porter  v.  McCreedy,  Code  Rep.  (N.S.)  88.)     So  held  in  action 
for  assault.  •  (Richardson  v.  Wilton,  4  Sand.  708.)     So  of  bond  exe- 
cuted by  defendant  as  surety.     (Hance  v.  Rumming,  i  Code  Rep.  (N.S.) 
204.)   So  in  contract,  where  complaint  specifically  alleges  contract.   (Ord 
v.  Stmr.  "Uncle  Sam,"  13  Cal.  369;  Gas  Co.  v.  San  Francisco,  9  CaL 
453.)     So  in  defendant  causing  process  to  issue.    (Lawrance  v.  Derby, 


684  FORMS   OF     DENIALS. 

1 5  Abb.  Pr.  346.)  So  of  fact  admitted  by  original  defendant.  (Forbes  v. 
Waller,  25  N.Y.  430.)  So  of  goods  sold  and  delivered  to  partner. 
Chapman  v.  Palmer,  12  How.  Pr.  38. 

No.  553. 

ii.    General  Denial  as  to  Part  of  a  Pleading. 
[TITLE.] 
The  defendant  answers  to  the  complaint: 

I.  That  he  denies  each  and  every  allegation  con- 
tained in  the  paragraphs  numbered  ....  and  . . . . ,  on 
folios  ....  and  . . . .,  of  plaintiff's  complaint. 

10.  Part  Denial. — Where  the  cause  of  action  is  divisible,  or 
where  several  causes  of  action  are  stated,  defendant  in  his  answer  may 
deny  part,  or  some,  or  one  of  the  causes  of  action,  and  leave  the  residue 
unanswered.     Cal.  Pr.  Act,  §  42;  N.Y.   Code,  §   151;  Smith  v.  Shu- 
feldt,  3   Code  Rep.  175;  Tracy  v.  Humphrey,  Id.   190;  Willis  v.  Tag- 
gard,  6  Hoiv.  Pr.  433;  Genessee  Mut.  Ins.  Co.  v.  Moynihen,  5  Id.  322; 
Snyder  v.  White,  6  Id.  321;  Longworthy  v.  Knapp,  4  Abb.  Pr.   115; 
Otis  v.  Ross,  8  How.  Pr.  R.  193;  3  C.  R.  175. 

11.  Part  Denial,  Effect  of. — But  the  effect  of  partial  denial 
will  be  limited  to  the  precise  ground  covered.     Gas  Co.  v.  San  Fran- 
cisco, 9  Cal.  453;  Seward  v.  Miller,   6  How.  Pr;  312.  Rosenthal  v. 
Brush,  Code  Rep.  (N.S.)  228;  Anable  v.  Conklin,  25  N.Y.  470;  affirming 
S.C.,  1 6  Abb.  Pr.  286;  Fairchild  v.  Rushmore,  8  Bosw.  698;  King  v. 
Utica  Ins.  Co.,  6  How.  Pr.  ^.485. 

| 

JVo.  554. 

iii.    General  Denial  of  One  of  Several  Causes  of  Action. 
[TITLE.] 

The  defendant  answers  to  the  first  cause  of  action 
contained  in  the  complaint  herein,  and  denies  each  and 
every  allegation  in  the  complaint  respecting  the  same. 


FORMS   OF     DENIALS.  685 

JVo.  555. 

iv.    Denial  by  Articles. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.    That  no   allegation  contained  in  the  [third  and 
fifth]  articles  thereof  is  true. 


12.  Indivisible  Facts. — Where  defendant  relies  on  a  state  of 
facts  single  and  indivisible,  it  is  not  necessary  to  separately  and  dis- 
tinctly state  and  number  each  mitigating  circumstance.     Kinyon  v . 
Palmer,  20  Iowa,  138. 

13.  Must  be  Specific. — If  the  pleadings  are  under  oath,  and 
the  replications  in  response  to  a  material  averment  Of  the  answer  under- 
take to  deny,  by  saying  "  it  is  not  true,"  etc.,  the  replication  is  evasive, 
and  does  not  specifically  deny  the  averment.     (Verzan  v.  McGregor, 
23  Cal.  339.)     And  only  such  allegations  should  be  denied  as  defend- 
ant intends  to  controvert.     (Newell  v.  Doty,  33  N.Y.  83.)    A  denial  can- 
not be  made  by  implication.     (West  v.  Am.  Bk.,  44  Barb.  175.)    Each 
proposition  should  be  separately  denied.     Cal.  Pr  Act,  §  46;  Moore  v. 
Del  Valle,  28   Cal.   170;  Fitch  v.  Bunch,  30  Id.  208;  Woodworth  v. 
Knowlton,  22  Id.  164. 

14.  Several  Grounds. — Nor  should  two  or  more  grounds  for 
defense  be  stated,  when  one  of  them  would  be  as  effectual  in  law  as  all 
of  them.    (Lord  v.  Tyler,  14  Pick.  164.)    Such  denials  would  be  bad  for 
duplicity,  which  must  be  avoided.     (Cal.  Pr.  Act,  §  39;  N.Y.  Code,  § 
142;  Oregon  Code,  §  65;  Laws  of  Wash.  T.  §  53;  Dunning  v.  Owen, 
14  Mass.  157;  Hooper  v.  Jellison,  22  Pick.  250;  Van  Namee  v.  Peo- 
ble,  9  How.  Pr.  198;  Strauss  v.  Parker,  Id.  342;  Cahoon  v.  Bank  of 
Utica,  3  Seld.  486.)     Such  allegations  as  are  not  specifically  denied, 
will  for  the  purposes  of  the  action  be  taken  as  true.     (De  Ro  v.  Cordes, 
4  Cal.  117;  Caulfield  v.  Sanders,  17  Id.  569;  Whitlock  v.  McKetchnie, 
I  Bosw.  427;  Pardee  v.  Schenck,  u  How.  Pr.  500;  Archer  v.  Boudi- 
nett,  i  C.  R.  (N.S.)  372;  Corwin  v.  Corwin,  9  Barb.  219;  Reilly  v. 
Cook,  22  How.  Pr.  93;  13  Abb.  Pr.  255;  see  Walrod  v.  Bennett,  6 
Barb.  144;  Harbeck  v.  Craft,  4  Duer,  122. 


686  FORMS    OF     DENIALS. 

15.  Single  Defense. — Denials  of  several  allegations  are  but  one 
defense.     Otis  v.  Ross,  8  How.  Pr.  193;  S.C.,  n  N.Y.  Leg  Obs.  343. 

16.  Special  Traverse. — A   special   traverse,  as  originally   de- 
vised and  used,  was  simply  a  mode  by  which  the  pleader  in  the  in- 
ducement spread  his  own  right  or  title  upon  the  record,  adding  to  this 
implied  denial  of  the  opposing  claim  a  direct  denial  under  the  absque 
hoc.     (Fox  v.  Nathans,  32   Conn.  348.)     The  inducement  in  such  a 
traverse  must  on  its  face  give  the  pleader  a  good  right  or  title,  or  the 
whole  plea  is  bad.     Id. 

17.  Specific  Application. — Each  denial  of  an  answer  must  be 
regarded  as  applying  to  the  specific  allegation  it  purports  to  answer,  and 
not  as  forming  a  part  of  an  answer  to  some  other  specific  and  entirely 
independent  allegation.     (Racouillat  v  Rene,  32  Cal.  450.)     A  denial 
in  an  answer  should  by  its  words  so  describe  the  allegations  of  the 
complaint  which  the  pleader  intends  to  controvert,  that  any  person  of 
intelligence  can  identify  them.     Mattison  v.  Smith,  19  Abb.  Pr.  288. 

JVo.  556. 

v.   Denial  of  the  Agreement  Alleged. 
[TITLE.] 

The  defendant  answers  to  the  plaintiffs  complaint: 

That  he  did  not  contract  or  agree  with  the  said 
plaintiff  in  manner  or  form  as  alleged  in  the  complaint, 
or  in  any  manner  or  form,  or  at  all. 

No.  557. 

vi.    Another  Form. 
[TITLE.] 

The  defendant  answers  the  complaint,  and  alleges: 

That  he  never  promised  [or  warranted,  or  cove- 
nanted] as  alleged  in  the  complaint  [or  that  he  never 
made  the  agreement  mentioned  in  the  complaint,  or  any 
agreement,  at  any  time  or  place.] 


FORMS    OF     DENIALS.  687 

No.  558. 

vii.    Another  Form. 
[TiTH.J 

The  defendant  answers  to  the  plaintiff's  complaint: 

I.  That  he  did  not  make  with  said  plaintiff  the  said 
agreement  by  the  said  plaintiff  set  forth  and  alleged  in 
his  said  complaint. 

No.  559. 

vii.    Controverting  Conditions  Precedent. 
[TITLE.]  « 

The  defendant  answers  to  the  complaint,  and  denies: 

That  the  plaintiff  did  perform  the  conditions  prece- 
dent of  said  [contract]  on  his  part  to  be  performed,  or 
any  one  of  them,  or  at  all,  or  that  he  made  any  de- 
posit, or  tender,  or  [state  what,  as  in  the  contract 
required^ 


18.  Conditions  Precedent. — Objections  that  conditions  have  not 
been  performed  must  be  specially  set  up.     People  v.  Jackson,  24  Cal. 
632 ;  Happe  v.  Stout,  2  Cal.  460;  Rogers  v.  Cady,  8  Id.  324. 

19.  Excuse  for  Non-Performance. — Where  performance  is 
prevented  by  the  act  of  the  plaintiff,  excuse  for  non-performance  should 
be  set  out  in  the  answer.     Clark  v.  Crandall,  3  Barb.  612;  27  Barb. 
73;  Garvey  v.  Fowler,  4   Sand,  665;  Crist  v.  Armour,  34  Barb.  378; 
Rhivara^.  Ohio,  3  E.  D.  Smith,  264. 


FORMS    OF     DENIALS. 

No.  560. 

ix.    Denial  of  Deed. 
[TITLE.]  , 

The  defendant  answers  the  complaint,  and  denies: 

That  the  "deed  mentioned  therein  is  his  deed,  or  that 
the  defendant  did  execute  such  deed  to  the  plaintiff, 
as  alleged,  or  that  the  defendant  did  convey  to  the 
plaintiff  the  possession  [or  equity  of  redemption]  in 
said  premises  as  alleged,  or  at  all. 

19.  On  Information  and  Belief. — An  allegation  in  an  answer  by 
an  administrator  that  the  defendant  ' '  avers,  on  information  and  belief, 
that  no  such  gieed  or  deeds  were  ever  executed,"  is  a  sufficient  denial 
of  an  averment  in   the  complaint  that  defendant's  intestate  executed 
and  delivered  the  particular  deeds  referred  to.     (Thompson  v.  Lynch, 
29  Cal.   189.)     That  defendant  may  deny  on  information  and  belief  in 
the  New  York  Practice,  see  (Sackett  v.  Havens,  7  Abb.  Pr.  371,  note; 
Dunham  v.   Gates,   Hoffm.  185;    but  in  Therasson  v.  McSpedon,    2 
Hilt,  i,)  a  denial  upon  information  and  belief  was  held  not  sufficient. 

20.  Effect  of  Admissions. — The  intent  of  the  statute  is  fully 
carried  out  by  excluding  parol  testimony  to  contradict  a  deed ;  but  where 
parties  admit  the  real  facts  of  the  transaction  in  their  pleadings,  these 
admissions  are  to  be  taken  as  modifications  of  the  instrument.     Lee  v. 
Evans,  8  Cal.  424. 

No.  561.  . 

x.   Denial  of  Conditional  Delivery. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  said  promissory  note  [or  deed]  was  not  ex- 
ecuted nor  delivered  by  the  plaintiff,  on  the  condition 
and  understanding  alleged,  but  was  delivered  by  him 
absolutely  and  without  condition. 


FORMS    OF    DENIALS.  689 

/ 

JVo.  562. 

xi.     Denial  of  Demand. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  did  not  demand  the  proceeds  of  the 
goods  therein  mentioned  before  the  commencement  of 
this  action. 


21.  Contract. — In  an  action  of  contract,  the  defense  that  no  de- 
mand was  made  before  the  commencement  of  the  suit,  cannot  be  taken 
advantage  of,  unless  pleaded  in  the  answer.       Rabsuhl  v.  Lack,  35 
Mo.  316. 

22.  Date. — A  denial  that  the  demand  was  made  on  a  certain  day, 
as  alleged,  is  a  denial  that  the  demand  was  made  on  the  particular  day 
stated  in  the  complaint,  when  the  statement  of  the  demand  is  not  qual- 
ified as  to  the  manner  of  its  being  made.    Hoopes  v .  Meyer,  i  Nev.  433. 


No.  563. 

xii.     Denial    of   Falsity. 
[TITLE.] 
The  defendant  answers  to  the  complaint: 

That  the  representations  alleged  to  have  been  made 
by  the  defendant  to  the  plaintiff  were  true. 


44 


690  FORMS    OF    DENIALS. 

No.  564. 

xiii.     Denial  of  Fraud 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  did  not  make  the  said  representations  in 
manner  and  form  as  the  same  are  in  the  said  com- 
plaint alleged. 

23.  Denial  of  Fraud. — Defendant  may  deny  fraud  in  a  trans- 
action which  is  actually  tainted  by  it;  for  what  constitutes  fraud,  partic- 
ularly fraud  in  law,  is  often  a  matter  of  much  diversity  of  opinion.  He 
therefore  must  answer  to  every  material  allegation.  Pettit  v.  Chandler, 
3  Wend.  618;  i  Paige,  427. 

JV0.  565. 

xiv.     The  Same — Another  Form. 
[TITLE.] 

The  defendant  answers  to  the  plaintiff's  complaint: 

That  the  said  defendant  did  not  [obtain  the  said  deed 
from  the  plaintiff]  by  fraud  and  misrepresentation,  in 
manner  and  form  as  the  said  plaintiff  hath  in  his  said  com- 
plaint alleged. 


24.  When  Insufficient. — Such  a  general  denial  of  fraud  as  the 
above  is  not  enough  where  facts  are  alleged  in  the  complaint  from 
which  the  Court  may  infer  fraud.  Litchfield  v.  Pelton,  6  Barb.  187; 
Drykers  v.  Woodard,  7  How.  Pr.  313;  Churchill  v.  Bennett,  8  Id.  309. 


FORMS    OF    DENIALS.  69! 

No.  566. 

xv.     Special  Denial  of  Part  Performance. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  he  did  not  put  plaintiff  into,  nor  consent  to 
plaintiff 's  taking  possession  of  the  said  premises,  under 
and  in  part  execution  of  the  said  pretended  sale  and 
contract  of  the  said  premises,  as  charged  in  said  com- 
plaint, or  at  all. 

II.  The  defendant  avers  that  the  said ,  of 

his  own  wrong,  and  without  the  license  and  against  the 
consent  of  said  defendant,  entered  into  said  premises, 
and  occupied  and  improved  the  same. 

No.  567. 

xvi.    Denial  of  Partnership. 
[TITLE.  1 

The  defendant  answers  the  complaint: 

That  the  said  [naming  them],  were  not  partners  as 
alleged;  or  that  the  said  A.  B.  was  not  a  partner  with 
the  said  [naming  them~\  as  assigned. 

No.  568. 

xvii.     Denial  of  Representations, 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  did  not  make  any  of  the  representations 
alleged. 


692  FORMS    OF    DENIALS. 

• 

No.  569. 

xviii.     Denial  of  Sale. 
[TrrLE.1 

The  defendant  answers  to  the  complaint: 

That  he  did  not  sell  the  ........  to  the  plaintiff. 

No.  570. 

xix.   Denial  of  a  Trust. 
[TITLE.] 

The   said   defendant   answers   to   the  complaint   of 
plaintiff: 

And  denies  ttfat  he  received  the  said ,  in 

said  complaint  mentioned,  for  the  purposes  and  on  the 
trusts  aforesaid,  or  any  of  them,  or  in  trust  at  all,  in 
manner  alleged  in  said  complaint,  or  in  any  manner. 

No.  571. 

xx.     Another  Form. 
[TITLE.] 

The  defendant  answers  to  the  complaint  of  plaintiff: 

I.  That  the  said  plaintiff  did  not  deliver,  and  the  said 
defendant  did  not  receive  the  said  [describe  what\  in 
the  said  complaint  mentioned,  upon  the  trust  and  con- 
fidence therein  alleged. 

II.  The  said  defendant  avers  that  he  received  the 
same  as  and  foa  his  own  property,  absolutely,  and  with- 
out any  trust  thereto  attached. 


FORMS    OF     DENIALS.  693 

JVo.  572. 

i.     Denial  on  Information  and  Belief. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  according  to  his  information  and  belief,  he 
denies  generally  and  specifically  each  and  every  allega- 
tion in  the  plaintiff's  complaint  contained. 


25.  Belief. — Belief,  as  used  in  the  statute,  is  to  be  taken  in  its 
ordinary  sense,  and  means  the  actual  conclusion  of  the  defendant  drawn 
from  information.     (Humphreys  #.  McCall,  9  Cal.  59.)     Belief  maybe 
founded  on  the  statement  of  others,  not  competent  witnesses,  and  not 
under  oath.     (Humpereys  z>.    McCall,  9  Cal.  59.)     Yet,  if  he  has 
formed  a  belief  from  this  source,  he  must  state  it.     He  cannot  be  the 
judge  as  to  whether  his  information  is  legal  testimony.     Id. 

26.  Damage. — A  denial  upon  information  and  belief  that  the 
plaintiff  suffered  or  sustained  damages  in  the  amount  of  2  5,000,  and 
an  averment,  upon  information  and  belief,  that  the  plaintiff  has  not 
sustained  any  damage  or  damages  whatsoever  to  exceed  the  sum  of 
$2,500,  which  sum,  and  none  other,  is  admitted  by  defendant  as  the 
damages  suffered,  with  an  offer  to  pay  the  same,  the  pleadings  not 
being  verified,  was   not   considered   a   model   answer   for  imitation. 
(Chamon  z>.  San  Francisco,    Cal.   Sup.  Ct.,  Jul.   T.,  1869.)     It  being 
the   employment  of  negative  averments  instead  of  denials.     But  in 
(Hill  v.  Smith,  27  Cal.  476),  an  answer  of  this  character  was  upheld," 
upon  the  principle  that  the  mere  form  of  a  denial  is  not  material,  pro- 
vided it  directly  traverse  the  allegation  which  it  is  intended  to  meet. 
A  denial  of  the   full  amount  claimed,  and  admission  of  a  certain 
amount  to  be  due,  and  a  tender  of  that  amount,  all  properly  go  to 
constitute  one  defense.     Spencer  v.  Tooker,  12  Abb.  Pr.  354. 

27.  Form  Sufficient. — A  denial  "on  information  and  belief" 
is  sufficient,  without  following  the  precise  words  of  the  Statute,  "  on  his 
information  and  belief."   (i  Van  Santv.  430;  Thompson  v.  Lynch,  29 


694  FORMS    OF     DENIALS. 

Col.  189;  Roussin  v.  Stewart,  33  Cal.  208;  doubted  in  Hackett  v.  Rich- 
ards, 3  E.  D.  Smith,  13.)  But  if  the  facts  are  inconsistent  with  the 
answer,  it  is  insufficient.  (Blake  v.  Eldred,  18  How  Pr.  240;  Edwards 
v.  Lent,  8  How.  Pr.  28;  but  see  Davis  v.  Potter,  4  How.  Pr.  155;  The- 
rasson  v.  Me  Sheldon,  2  Hilt.  \ . 

28.  Judgment. — If  the  complaint  aver  the  recovery  of  a  judg- 
ment against  one  of  several  defendants,  the  court  in  which  it  was  re- 
covered, and  the  date  and  amount  of  the  same,  the  defendants,  in  their 
answer,  may  deny  the  same  upon  information  and  belief.     Vassault  v. 
Austin,  32  Cal.  597. 

29.  On  Information  and  Belief. — An  answer  that  denies  a 
material  averment  of  a  complaint  "  on  information  and  belief,"  is  a 
sufficient  denial  to  raise  an  issue  thereon,  under  the  forty-sixth  and 
fifty-fifth  Sections  of  the  Practice  Act.     Vassault  v.  Austin,   32   Cal. 
597;  Roussin  v.  Stewart,  33  Cal.  208;  Nelson  v.  Murray,  23  Cal.  338; 
affirmed  in  Jones  v.  City  of  Petaluma,  36  Cal.  230. 

30.  Recollection  and  Belief. — Where  the  plaintiff,  in  his  bill, 
directly  charged  upon  the  defendant  that  he  had  made  and  entered 
into  a  certain  agreement,  a  simple  denial  by  the  defendant  in  his 
answer,  "  according  to  his  recollection  and  belief,"  is  insufficient,  and 
must  be  treated  as  a  mere   evasion.     Harr.  Ch.  Pr.  181,  182;  Coop. 
Eq.  Plead.  341;  Taylor  v.  Luther,  8  Sumn.  228. 

31.  Upon  Information  and  Belief. — Where  the  denials  are 
"  upon  his  information  and  belief,"  instead  of  the  statutory  language 
"according  to  his  information  and  belief,"   it  may  well  be  doubted 
whether  the  former  mode  of  denial  does  not  allow  a  little  wider  field 
for  evasion,  but  it  has  been  widely  adopted  by  pleaders,  and  it  is  now 
settled  that  it  is  sufficient.     Vassault  v.  Austin,  32  Cal.  606;  Roussin 

*v.  Stewart,  33  Id.   211;    Jones   v.  City  of  Petaluma,  36  Cal.   230; 
Kierstein  v.  Madden,  Cal.  Sup.  Ct.,Jul.  T.,  1869. 


FORMS    OF     DENIALS.  695 

No.  573. 

ii.    Denial  of  Knowledge  Sufficient  to  Form  a  Belief. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  has  no  knowledge  or  information  sufficient 
to  form  a  belief  whether  any  one  allegation  is  true. 
\_Or,  where  there  are  several  defendants,  and  if  only 
part  of  them  join,  name  them — the  defendants  answer 
to  the  complaint,  each  for  himself,  that  he  has  no 
knowledge,  etc.] 


NOTE. — This  form  is  applicable  to  Oregon,  and  to  other  states,  but 
not  to  California.     Code  of  Oregon,  §  71;  N.Y.  Code,  §  149. 

33.  Allegation  of  Ignorance. — A  mere  allegation  of  ignorance 
of  the  facts  alleged  will  be  insufficient  to  raise  an  issue,  and  the  facts 
so  attempted  to  be  controverted  will  be  held  admitted.     (Wood  v. 
Staniels,  3  Code  R.  152;    Elton  v.  Markham,  20  Barb.  343;    Sayne  v. 
Gushing,  7  Abb.  Pr.  371;  Chapman  v.  Palmer,  12  How.  Pr.  37.)     In 
what  cases  a  party  may  deny  the  allegation  of  a  pleading  from  want  of 
sufficient  knowledge  or  information  to  form  a  belief,  see  Lewis  v.  Acker, 
ii  How.Pr.  R.  163. 

34.  California  Rule. — In  no  case  under  the  California  Practice 
can  the  allegations  of  a  verified  complaint  be  controverted  by  a  denial 
of  sufficient  knowledge  or  information  upon  the  subject  to  form  a  belief. 
(Andersons.  Parker,  6  Cal.  197;  Curtis  v.  Richards,  9  Cal.  33;  Hum- 
phreys v.  McCall,  Id.  59;  Gas  Company  v.  San  Francisco,  Id.  453;  Ord 
v.  Steamer  "Uncle  Sam,"  13  Id.  369.)   Even  where  defendant  is  a  cor- 
poration.    (S.  F.  Gas  Co.  v.  City,  9  Cal.  453.)     Nor  is  it  a  denial  to  aver 
in  the  answer,  where  complaint  and  answer  are  both  verified,  that  the 
defendants  deny  for  want  of  information  to  enable  them  to  admit  the 
sale  and  transfer  of  said  Georgia   ditch  to  them,  the   said    plaintiffs 
as  alleged.     (Humphries  v.  McCall,  9  Cal.  59.)     In  such  case  he  must 
answer  positively,  or  state  how  it  is  that  he  is  without  knowledge  of  such 
facts.     (Vassault  v.  Austin,  32  Cal.  597;  Brown  v.  Scott,  25  Cal.  189; 


696  FORMS    OF    DENIALS. 

Richardson  v.  Wilton,  4  Sand/.  708;  Ketchum  v.  Zerega,  i  E.  D. 
Smith,  553;  Shearman  v.  N.Y.  Cent.  Mills,  i  Abb.  /V.fey;  Fales  v. 
Hick,  12  How.  Pr.  153.)  The  duty  of  acquiring  the  requisite  knowl- 
edge or  information  is  imposed  by  statute  on  the  defendant,  to  enable 
him  to  answer  in  the  proper  form.  Gas  Co.  v.  San  Francisco,  9  Cal. 
453;  Brown  v.  Scott,  25  Cal.  189;  Fish  v.  Redington,  31  Id.  185; 
Fales  v.  Hicks,  12  How.  Pr.  184;  Richardson  v.  Wilton,  4  Sand/. 
708:  Hance  v.  Reming,  i  Code  R.  (N.S.)  204;  Mott  v.  Burnett,  2  E. 
D.  Smith,  50;  Shearman  v.  N.Y.  Cent.  Mills,  i  Add.  Pr.  187;  to 
the  same  effect,  Curtis  v.  Richards,  9  Cal.  37. 

35.  Forms  Insufficient. — A  denial  of  knowledge  merely  is  not 
sufficient.    If  not  positive,  the  denial  must  be  of  knowledge  or  inform- 
ation sufficient.      (Edwards .v.  Lent,  8  How.  Pr.  28;  Ketcham  v.  Zer- 
ega, i  E.  D.  Smith.  553;    People  v.  McCumber,   15  How.  Pr.  189.) 
That   defendant    "does   not  know  of  his  information  or  otherwise" 
(Sayre  v.  Gushing,   7  Abb.  Pr.  371),  or  that  defendant  "is  not  in- 
formed and  cannot  state"  (Elton  v.  Markham,  20  Barb.  348),  or  "  that 
defendant  has  no  knowledge,"  or  "  that  defendant  is  ignorant  whether," 
or  "  that  defendant  has  not  sufficient  knowledge  or  information  whereon 
to  founds  belief,"  or  "that  defendant  does  not  know  or  believe,"  are 
not  sufficient    denials.      (Mott   v.  Burnett,   i   Code  R.  (N.S.)  225; 
approved,  2  E.  D.  Smith,  50;  Robinson  v.  Woodgate,  3  Edw.  422.) 
Nor  that  he  has  no  "  recollection  concerning  it."    (Nichols  v.  Jones,  6 
How.  Pr.  355.)  Nor  "that  he  is  ignorant  of  whether,  etc."  (Wood  v. 
Staniels,  3  Code  Rep.  152.)     But  if  he  admitted  his  belief,  he  need  not 
deny  information.     (Davis  v.  Mapes,  2  Paige,  105.)    So,  where  he  has 
the  means  of  informing  himself,  such  a  denial  would  be  insufficient. 
(Hance  v.  Rumming,  2  E.  D.  Smith,  48.)     But  in  other  cases  such  a 
denial  is  sufficient  in  New  York.     Dovan  v.  Dinsmore,  33  Barb.  36; 
20  How.  Pr.  503;  Ketcham  v.  Zerega,  i  E.  D.  Smith,  587;    Brown  v. 
Ryckman,   12    How.  Pr.  313;  Van  Renselaer   v.  Laman,   10   How. 
Pr.  505. 

36.  New  York  Rule. — A  denial  as  to  a  material  allegation,  or 
as  to  all  the  allegations  of  a  complaint,  of  any  knowledge  or  information 
sufficient  to  form  a  belief,  forms  a  complete  issue.     N.Y.  Code,  §  149; 
Hutchings  v.  Moore,  4  Met.  (Ky.)  no;   Chadwick  v.  Booth,  22  How. 
Pr.  23;  13  Abb.  Pr.  247;  Brown  v .  Rockman,  12  How.  Pr.  313;  Cas- 
well  v.  Bushnell,  14  Barb.  393;  Genessee  Mut.  Ins.  Co.  v.  Moynihen, 
5  How.  Pr.  321;  Sherman  v.  Bushnell,  7  How.  Pr.  171;    Duncan  v. 


FORMS    OF    DENIALS.  6o7 

«  '* 

Lawrence,  3  Bosw.  103;  Livingston  v.  Hammer,  7  Bosw.  670;  Metro- 
politan Bank *z>.  Lord,  4  Duer,  630;  Townsend  v.  Platt,  3  Abb.  Pr.  325; 
Edwards  v.  Lent,  8  How.  Pr.  28;  Ketcham  z».  Zerega,  i  E.  D.  Smith, 
554;  Chapman  v.  Palmer,  12  How.  Pr.  38;  Flood  z>.  Reynolds,  13 
How.  Pr.  112;  King  v.  Ray,  u  Paz^,  236;  Leach  v.  Boynton,  3  Add. 
Pr.  3;  Wesson  v.  Judd,  T  Abb.  Pr.  254;  Temple  v.  Murray,  6  How. 
Pr.  329;  Snyder  v.  White,  6  How.  Pr.  321;  De  Sants  v.  Searle,  n 
How.  Pr.  477. 

37.  Notice. — Where  an  answer  denied  ' '  any  knowledge  or  inform- 
ation sufficient  to  form  a  belief,  whether  or  not  a  notice  was  served 
on  "  the  defendant  "  as  required  by  law,"  it  was  held  that  the  averment 
made  issue  only  as  to  the  lawfulness  of  the  notice,  and  not  as  to  the 
fact  of  notice.     Solding  v.  Bartlett,  35  Mo.  90. 

38.  Presumption  of  Knowledge. — When  suit  is  upon  a  prom- 
issory note,  it  is  presumed  the  defendant  knows  whether  or  not  he 
made  the  note.     (Gas  Company  v.  San  Francisco,  9  Cal.  465.)     In  an 
action  to  recover  from  the  defendants  a  deposit  made  in  their  hands 
in  California,  it  was  alleged  in  the  complaint  that  they  were  co-part- 
ners, and,  as  such,  doing  business  in  California,  and  elsewhere,  as  bank- 
ers and  common  carriers.     The  answer  alleged  that  the  defendants  had 
never  been  in  California,  had  never  personally  transacted  business  there, 
and  had  no  personal  knowledge  and  no  information  sufficient  to  form 
belief,  and  therefore   denied  that  the  plaintiff  made  such   deposit. 
Held,  that  such  allegation  was  not  irrelevant.     From  the  allegation  in 
the  complaint,  without  explanations,  the  presumption  would  be  that  the 
money  was  deposited  with  the  defendants  in  person,  and  that  they  had 
personal  knowledge  thereof,  and  consequently  they  could  not  be  per- 
mitted to  deny  that  allegation  on  information  and  belief,  without  first 
rebutting  the  presumption;  and  the  statement  was  relevant  and  proper 
for  that  purpose.     Dovan  v.  Dinsmore,  20  How.  Pr.  503. 

39.  Surplusage. — It  is  not  necessary  to  add,  "  and  therefore  de- 
nies;"  (Flood   v.  Reynolds,  13  How.  Pr.   112;  Sacket  v.  Havens,  7 
Abb.Pr.  371;  Morris  v.  Parker,  3  Johns.  Ch.  297;)  unless  it  be  acts  of 
the  defendant  which  are  charged  in  the  complaint.     Sloan  v.  Little,  3 
Paige,  103. 

40.  When  Insufficient. — A  denial  of  any  knowledge  or  inform- 
ation that  the  instrument  was  executed  by  defendant,  was  held  a  friv- 
olous denial.     (Wesson  v.  Judd,  2  Abb.Pr.  254;   see,  however,  Kel- 


698  FORMS    OF  .DENIALS. 

logg  v.  Baker,  15  Id,  287.)  Or  that  judgment  was  obtained  against  de- 
fendant. (Ketcham  v.  Zerega,  i  E.  D.  Smith,  555.)  Or  of  a  note 
made  by  partner.  (Mott  v.  Burnett,  i  Code  Rep.  (N.S.)  225;  2  E.  D. 
Smith,  50.)  Or  that  the  note  was  transferred  by  defendant.  (Fales  v. 
Hicks,  1 2  How.  Pr.  1 53.)  Or  whether  plaintiff  is  owner  and  holder  of  a 
note,  indorsed  and  delivered  by  defendant.  (Kamlah  v.  Salter,  6  Abb.  Pr. 
226;  see,  contra,  Temple  v.  Murray,  6  How.  Pr.  329;  Snyder  v.  White, 
Id.  321;  Genessee  Mut.  Ins.  Co.  v.  Moynihen,  5  Id.  321.)  That  an 
answer  which  denies  that  the  defendant  has  any  knowledge  of  the  facts 
charged,  without  adding  that  he  had  no  information  or  belief  of  them, 
is  defective,  see  (Bradford  v.  Geiss,  4  Wash.  C.  Ct.  513.)  The  alle- 
gation of  the  death  of  plaintiff's  ancestor  in  a  verified  complaint  is 
not  sufficiently  controverted  by  the  averment  in  the  answer  "  that  de- 
fendant has  not  sufficient  knowledge  to  form  a  belief,"  and  therefore 
neither  admits  nor  denies.  Anderson  v.  Parker,  6  Cal.  197. 

41.  Written  Instrument.  If  the  defendant  admits  that  he 
executed  an  instrument  upon  which  he  is  sued,  he  cannot  deny  inform- 
ation sufficient  to  form  a  belief  as  to  the  facts  recited  in  the  instrument, 
or  that  the  instrument  is  correctly  stated  in  the  complaint.  But  he  is 
entitled  to  an  inspection  of  the  original,  to  enable  him  to  answer.  (Wes- 
son v.  Judd,  i  Abb.  Pr.  254.)  But  a  party  is  not  presumed  to  recol- 
lect the  date  or  contents  of  a  written  instrument  not  in  his  possession. 
Kellog  v.  Baker,  15  Abb.  Pr.  286. 


No.  574. 

iii.     Another  Form. 
[TITLE.] 

Alleges  that  he  has  no  knowledge  or  information 
other  than  is  afforded  by  said  [pleading],  that  [reciting 
allegation]  and  cannot  therefore  admit,  but  on  the  con- 
trary he  denies,  etc. 


43.  Documents,  Facts  in. — Has  no  knowledge  or  information 
of  certain  facts  except  from  certain  documents,  is  insufficient,  if  they 
are  not  set  forth  and  not  answered  according  to  belief.  Cuyler  v.  Bo- 
gert,  3  Paige,  186. 


FORMS    OF     DENIALS.  699 

44.  Form  of  Denial. — This  mode  of  denial  is  sanctioned  by 
the  Code  of  Ohio;  and  this  form  is  sustained  by  (State  of  Ohio  ex  rel. 
Treadwell  v.  Commissioners  of  Hancock,   n   Ohio  St.  183.)     But  it 
would  be  useless  as-  a  denial  under  our  practice,  and  on  motion  would 
be  stricken  out. 

45.  Several  Denial. — Where  the  answer   is  verified,  one  de- 
fendant cannot  deny  knowledge,  etc.,  on  the  part  of  the  other.     The 
denial,  therefore,  should  in  general  be  made  severally.     See  Kinkaid 
v.  Kipp,  i  Duer,  692. 

46.  Written  Instrument. — In  cases  in  which  a  copy  of  an  in- 
strument in  writing  is  annexed  to  the  petition  as  part  thereof,  the  cor- 
rectness of  the  copy  cannot  be  regarded  as  the  material  allegation  in 
the  petition;  but  the  petition  is  to  be  regarded  as  alleging  the  substan- 
tial effect  of  the  instrument,  which  is  shown  by  the  copy.     An  answer 
must  meet  the  allegations  as  if  such  was  the  form  of  the  petition. 
(Bentley  v.  Dorcas,  n  Ohio  St.  398-)    This  is  the  rule  under  the  Ohio 
practice. 

No.  575. 

iv.     Denial  of  Knowledge,  Explaining  Cause  of  Ignorance. 
[TITLE.] 

The  defendant  answers  to  the  plaintiff's  complaint: 

I.  That  he  denies  that  he  has  ever  been  within  the 

State  of ,  that  he  ever  personally  transacted 

any  business  therein. 

II.  Denies  that  he  did  at  the  time  stated,  or  at  any 
other  time,  do  or  say  [state  whatl\ 


47,  Corporation — Acts  of  Agents. — Acts  done  by  the  agent 
of  the  defendant  are  also  within  this  rule;  and  it  applies  to  the  case  of 
a  corporation  e  fendant,  for  a  corporation  can  as  well  know  the  acts  of 
their  agent  as  any  thing  else.  Shearman  v.  New  York  Central  Mills^ 
i  Abb.  Pr.  187;  affirming  S.C.  sub  nom.  Thorn  v.  New  York  Central 
Mills,  10  How.  Pr.  19. 


CHAPTER,  III. 

FORMS   OF    SPECIAL   PLEAS. 

JVo.  576. 

Accord  and  Satisfaction, 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That   on   the    ....   day   of ,  1 8 . . ,    at 

,  he  delivered  to  the  plaintiff  the  promissory 

note  of  B.  C.  for dollars. 

II.  That  the  plaintiff  accepted  the  same  in  full  satis- 
faction of  the  claim   \pr  demand]   set  up  in  tne  com- 
plaint. 


1.  Essential  Averments. — A  plea  of  accord  and  satisfaction 
must  aver  the  payment  and  receipt  in  satisfaction,  Maze  v .  Miller,  i 
Wash.  C.  Ct.  338;*  United  States  v.  Clarke,  Hempst.  315. 

52.  Form  of  Defense. — For  a  form  in  the  defense  of  accord  and 
satisfaction,  see  2  Greenl.  on  Ev.  28;  note  and  authorities  there  cited. 

3.  Insufficient  Averment. — A  mere  readiness  to  perform  the 
accord,  or  a  tender  of  performance,  or  even  part  performance  and 
readiness  to  perform  the  rest,  is  not  enough.  (Hearn  v .  Kiehl,  38 
Penn.  147.)  A  plea  which  alleges  that  the  defendant  executed  to  the 
plaintiff  a  deed  of  certain  property,  which  was  to  be  absolute  in  case 
the  note  sued  on  was  not  paid  by  a  certain  day,  without  alleging  that 
the  deed  was  accepted  as  a  satisfaction,  is  bad.  Shaw  v.  Burton,  5 
Mo.  478. 


FORMS  OF  SPECIAL  PLEAS.  7OI 

4.  Must    be    Specially    Pleaded. — Accord   and   satisfaction 
must  be  specially  pleaded.     (Piercy  v.  Sabin,  10  Cal.  30;  Coles  v. 
Soulsby,   21   Id.  47;  Good  v.  Davis,  Hempst.   16;  Shaw  v.  Burton,  5 
Mo.  478.)    And  evidence  of  the  discharge  of  the  debt  sued  on,  pend- 
ing the  action,  is  admissible  only  under  this  plea.     (Jessup  v.  King,  4 
Cal.  331.)     The  plaintiff  on  an  execution  may  receive  promissory 
notes  by  a  special  agreement,  as  an  absolute  payment  of  the  same,  but 
the  agreement  must  be  proved  by  testimony  other  than  the  sheriffs 
certificate.      (Mitchell  v.  Hackett,   25  Cal.    542.)      An  accord  and 
satisfaction  after  issue  joined  must  be  pleaded  specially  as  happening 
since  the  last  continuance.     Good  v.  Davis,  Hempst.  16. 

5.  When  Allowed. — This  plea  is  allowed  to  be  put  in  after  the 
defendant  has  already  pleaded,  where  some  new  matter  of  defense 
arises  after  issue  joined,  such  as  payment,  a  release  by  the  plaintiff,  the 
discharge  of  the  defendant  under  an  insolvent  or  bankrupt  law,  and 
the  like.     2  Burr.  L.  Diet.  353;  3  Blk.  Com.  316;  2  Tidd's  Pr.   847; 
I  Burr.  Pr.  232;  Steph.  PI.  64. 


No.  577. 

Alteration  of  Contract. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That    on    the day   of ,  18 . . ,    at 

,  the  plaintiff  agreed  with  C.  D.  in  the  com- 
plaint mentioned,  in  consideration  of dollars, 

to  extend  the  time  of  payment  of  the  rent  guarantied 
by  the  defendant  ....  days. 

II.  That  the  defendant  had  no  knowledge  of-[or  did 
not  assent  to]  the  said  [extension]. 


7O2  FORMS    OF     SPECIAL    PLEAS. 

No.  578. 

Another  Action  Pending. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  there  was,  at  the  commencement  of  this  action, 

and  still   is  another  action   pending  in  the 

Court  of  the  [describe  the  court],  between  the  same 
parties,  and  for  the  same  caus  of  action  as  in  the  com- 
plaint herein. 


6.  Discontinuance,  Effects  of— It  would  seem  that  under  the 
decision  of  the  New  York  courts  a  discontinuance  of  the  other  action, 
even  after  the  answer,  avoids  this  defense.     Beals  v.  Cameron,  3  How. 
Pr.  414;    Averill  v.  Patterson,  10  Id.  85. 

7.  Foreign  Suit  Pending. — That  a  prior  suit  in  personam,  between 
the  same  parties,  and  for  the  same  cause  of  action,  was  pending  in 
another   State   at  the  time  of  bringing  the  action,  is  not  a  defense. 
(Seevers  v.  Clement,  28  Md.  426.)     But  the  pendency  of  a  suit  between 
the  same  parties  and  respecting  the  same  subject  matter,  in  another 
State,  may  be  pleaded  in  abatement  in  the  courts  of  the  United  States. 
(Ex  parte  Balch,  3  McLean,  221.)    Where  an  appearance  in  a  foreign 
attachment  suit  in  another  State  is  after  the  service  of  the   writ  in  an 
action  between  the   same  parties  in  this  State,  the   pendency   of  the 
foreign  suit  cannot  be  pleaded  in  bar  or  abatement  of  the  action  here. 
Wilson  v.  The  Mechanics'  Bank,  45  Penn.  488. 

8.  Form  of  Plea. — For  form  of  a  plea  of  a  foreign  attachment, 
see  Wheeler  v.  Raymond,  8  Cow.  311;   Russell  v.  Ruckman,  3  E.  D. 
Smith,  419;  Embree  v.  Hanna,  5   Johns.  101;    Donovan  v.  Hunt,  7 
Abb.  Pr.   29;  Hecker  v.  Mitchell,  5  Id.  453. 

9.  Identity  of  Cause. — To  sustain  this  defense,  it  must  appear 
that  the  two  actions  are  for  the  same  identical  cause;  but  where  the 
plaintiff  seeks  to  split  an  entire  demand,  and  brings  a  suit  for  a  part, 
.and  then  another  suit  for  the  residue,  the  pendency  of  the  former  may 


FORMS   OF   SPECIAL    PLEAS.  703 

be  pleaded  in  abatement  or  bar  of  the  second  action.  (Bendernagle  v. 
Cocks,  19  Wend.  207.)  Our  practice  discountenances  litigation  by 
piecemeal. 

10.  Identity  of  Parties.—  The  defense  of  a  prior  lit  pendens 
is  available  only  where  the  plaintiff,  at  least,  in  both  actions  is  the 
same.     (O'Conner  v.  Blake,    29    Cal.   312.)     It  is   enough  to  state 
merely  that  the  action  was  between  the  same  parties.     Describing  the 
parties  is  unnecessary.     Ward  v.  Dewey,  12  How.  Pr.  193. 

11.  Multifariousness,    "what     Constitutes.  —  There    is    no 
definite  rule  as  to  what  constitutes  multifariousness  in  a  pleading  in 
chancery.     Each  case  must  depend  upon  its  own  circumstances,  and 
much  must  be  left  to  the  sound  discretion  of  the  Court.     Story  Eq. 
Plead.  §   530;    Gaines  v.  Chew,   2   How.    Pr.  619,   642;    Oliver  v. 
Piatt,  3  Id.  333,  411;  affirming  S.C.,  3  McLean,  27;  McLean  v.  Lafay- 
ette Banks,  3  McLean,  415. 

12.  Verification  Essential.  —  In  a  plea  in  abatement  that  a 
prior  suit  is  pending,  the  absence  of  an  affidavit,  verifying  allegations 
in  the  plea  that  the  parties  and  cause  of  action  are  the  same,  is  fatal. 
4  Hals.  83;  White  v.  Whitman,  i  Curt.  C.  Ct.  494. 

13.  What  must  be  Alleged.  —  In  New  York,  it  is  not  enough 
to   allege   service   of  process   for  the  same  cause,  without  showing  a 
declaration  or  complaint  for  the  same  cause.     Gardner  v.  Clark,  21 


14.  What  must  be  Shown.  —  A  plea  to  abate  an  action,  by 
reason  of  another  action  pending,  is  not  good  unless  it  shows  that  the 
pending  action  was  brought  for  the  same  cause  as  the  one  in  which 
the  plea  is  interposed.  (Calaveras  Co.  v.  Brockway,  30  Cal.  325.) 
To  support  a  plea  in  abatement,  founded  on  the  pendency  of  a  prior 
action,  it  is  necessary  to  show  that  process  was  issued  in  such  action. 
(Primm  v.  Gray,  10  Cal.  521.)  A  plea  which  sets  up,  in  bar  of  an 
action  upon  a  contract,  that  property  was  attached  in  a  previous  suit  to 
answer  for  the  same  demand,  and  was  lost,  should  show  how  the  loss 
occurred.  (Starr  v.  Moore,  3  McLean,  354.)  A  plea  in  abatement, 
setting  up  pendency  of  a  prior  suit,  must  show  that  the  other  court  has 
jurisdiction  of  the  action  there  pending.  (10  Pick.  470;  White  v. 
Whitman,  i  Curt.  C.  Ct.  494;  Ex  parte  Balch,  3  McLean,  221.)  It 
has  been  held  in  New  York  that  the  answer  should  show  where  the 


704  FORMS    OF    SPECIAL   PLEAS. 

action  is  pending.  But  pendency  of  another  action  in  a  court  of 
another  state,  or  in  a  court  of  the  United  States,  is  not  generally  a  good 
defense.  Cook  v.  Litchfield,  5  Sand/.  330;  Burrows  v.  Miller,  5 
How.  Pr.  51;  Strong  v.  Stevens,  4  JDuer,  668;  and  see  Republic  of 
Mexico  v.  Arrangois,  i  Abb,  Pr.  437;  People  v.  The  Sheriff,  i  Park. 
Cr.  659;  Hecker  v.  Mitchell,  5  Abb.  Pr.  453;  Bowne  v.  Joy,  9  Johns. 
22i',  Walsh  v.  Durkin,  12  Id.  99. 

15.  When  Defense  Lies. — A  plea  in  abatement  may  be  inter- 
posed to  the  entire  action,  on  the  ground  that  another  suit  was  pending 
for  the  same   cause  of  action,  if  the  copy  of  the  record   be  annexed. 
Still,  the  proofs  must  show  that  the  first  cause  of  action  is  for  the  same 
matter  sued  for  in  the  second  suit.     (Thompson  v.  Lyons,  14  Cal.  42.) 
See,  also,   on   abatements,    Calaveras  Co.  v.   Brockway,    30  Cal.  325. 
The  People  v.  De  La  Guerra,  24  Cal.  73;  Hentsch  v.  Oorter,  loCal. 
555;  Whitney  v.  Stark,  8  Cal..  51 4;  Ex parte  Balch,  3  McLean,  221; 
Whiter.  Whitman,  i   Curt.  C.  Ct.  494.)     It  would  also  appear  that 
proceedings  other  than  an  action — e.g.,  by  petition — may  be  pleaded 
as  a  defence,  in  the  same  way.     See  Groshon  v.  Lyon,  16  Barb.  461; 
and  see  Ogden  v.  Bodle,  2  Duer,  611. 

16.  When  Defense  -will  not  Lie. — Where  defendant  pleads 
another  suit  pending,  and  it  appears  no  summons  was  ever  issued  on 
the  complaint,  and  there  was  no  voluntary  appearance  on  the  part  of 
the  defendant:  Held,  that  there  was  no  suit  pending.     (Weaver  v.  Con- 
ger, 10  Cal.  233;  Primm  v.  Gray,  Id.  522.)    So,  where  the  complaint 
is  so  defective  that  a  judgment  entered  thereon  would  be  a  nullity. 
(Reynolds  v.  Harris,  9  Cal.  338.)    So,  where  the  other  suit  pending 
was  for  only  a  part  of  the  same  matter  sued  for  in  the  second  suit. 
Thompson  v.  Lyon,  14  Cal.  39. 


No.  579. 

Arbitration  and  Award. 
[TITLE,] 

The  defendant  answers  to  the  complaint: 

I.    That  on  the day  of ,  1 8 . . ,   the 

plaintiff  and  defendant  mutually  submitted  the  demand 


FORMS    OF    SPECIAL    PLEAS.  705 

set  forth  in  the  complaint  to  the  arbitration  of  A.  B.  and 
C.D. 

II.   That  on  the  .....'  day  of ,  18   . ,  at 

,  the  said  A.  B.  and  C.  D.  made  and  published 

their  award  [by  which  they  declared  the  plaintiff  not 
entitled  to  any  part  of  his  said  demand]. 

NOTE. — This  applies  more  especially  to  the  practice  in  New  York. 

17.  Award  Set  Forth. — Although  it  may  not  be  necessary  to 
set  forth  its  terms,  its  substance  must  be  set  forth  so  fully  as  to  enable 
the  Court  to  say  that  if  such  an  award  was  made  the  action  is  barred. 
Gihon  v.  Levy,  2  Duer,  176. 

18.  New  Matter. — An  award  or  former  recovery  for  the  same 
cause  is  new  matter,  which  must  be  specially  stated  in  the  answer,  and 
is  not  otherwise  available,  even  though  it  appears  by  plaintiff's  evidence. 
(Brazil  v.  Isham,  12  N.Y.   g;  \  E.D.  Smith,  437.)    The  decision  in 
(20  Barb.    460)   turning   on   the   same  point  was   reversed   on   the 
ground  that  as  plaintiff  did  not  appear  to  have  been  misled  or  surprised, 
and  not  having  objected  that  the  evidence  of  a  defense  not  pleaded  was 
not  admissible,  he  could  not  have  the  judgment  reversed  because  it  had 
been  admitted.     N.Y.  Cent  Ins.  Co.  v.  National  Protection  Ins.  Co., 
14  N.Y.  85. 

19.  Performance,  -when  Alleged. — An  award  which  merely 
settles  the  amount  due  cannot  be  pleaded  in  bar  to  the  action  without 
alleging  performance;  for  the  money  until  paid  is  due  in  respect  of  the 
original  debt.     Brazil  v.  Isham,  i  E.  D.  Smith,  457. 


No.  580. 

Bankruptcy. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That    on    the    day    of ,    1 8 . . ,    at 

,  the    Honorable  the    United  States  District 

Court,  of  the District  of ,  made  and 

45 


7O5  FORMS    OF    SPECIAL   PLEAS. 

granted  to  the  defendant  a  decree  of  discharge  from 
his  debts,  as  a  bankrupt,  of  which  decree  of  discharge  a 
a  copy  is  annexed  [annex  copy  of  decree],  and  made  a 
part  hereof. 


20.  Bankruptcy. — The  plea  of  bankruptcy  is  not  favored,  and 
may  be  defeated  by  proof  of  fraud.     (Fellows  v.  Hall,  2  McLean,  281.) 
The  bankruptcy  of  the  plaintiff  must  be  specially  pleaded.     (Cook  v. 
Lansing,  3  McLean,  571.)     So,  bankruptcy  of  the  defendant  must  be 
specially  pleaded.     (Fellows  v .  Hall,  3  McLean,  281 ;  Cutter  v.  Folsom, 
17  N.H.  139.)     It  is  not  properly  a  plea  in  abatement,  but  it  is  rather 
a  plea  in  bar;  and  until  such  plea  is  interposed,  the  plaintiff  is  not 
bound  to  take  notice  of  the  bankruptcy  of  the  defendant.     Fellows  v. 
Hall,  3  McLean,  281. 

21.  Bankruptcy  of  Plaintiff — To  a  suit  brought  in  the  name 
of  a  bankrupt  subsequent  to  the  appointment  of  his  assignee,  the  de- 
fendant may  plead  the  bankruptcy  of  the  plaintiff,  and  the  appointment 
of  the  assignee,  in  abatement.     Cook  v.  Lansing,  3  McLean,  571. 

22.  Debt. — It  is  not  essential  to  admit  the  existence  of  the  debt. 
(McCormic  v.  Pickering,  4  N.Y.    276.)     But /it  should  be  averred  to 
have  been  provable  under  the  Act.     (Sackett  v.  Andross,  5  Hill,  327.) 
A  special  averment  that  the  demand  in  suit  was  included  in  the  list  of 
creditors  contained  in  the  petition  is  unnecessary.     McCormic  v.  Pick- 
ering, 4  N.Y,  276. 

23.  Discharge. — It  has  been  held  in  New  York,  a  plea  of  dis- 
charge under  the  voluntary  provisions  of  the  Bankrupt  Act  must  aver 
positively  that  the  defendant,  at  the  time  of  presenting  the  petition,  owed 
debts.     Averring  that  the  petition  so  alleged  is  not  sufficient.    (Varnum 
v.  Wheeler,  i  Den.  331;  Dresser  v.  Brooks,  3  Barb.  429.)     In  plead- 
ing an  insolvent's  discharge,  it  is  not  necessary  to  state  the  facts  confer- 
ring jurisdiction  on  the  officer  who  granted  it.     Livingston  v.  Oak- 
smith,  13  Abb.  Pr.  183. 

24.  Excepted  Class  of  Debts. — A  plea  that  defendant  did 
owe  debts  which  are  not  within  the  excepted  classes,  and  that  he  pre- 
sented a  petition,  etc.,  imports  that  he  was  bankrupt  within  the  Act. 
McNulty  v.  Frame,  i  Sandf.  128. 


FORMS    OF    SPECIAL   PLEAS.  7O/ 

25.  Exceptions  under  the  Act. — It  should  be  averred  that 
the  plaintiff's  debt  did  not  arise  by  reason  of  a  defalcation  as  a  public 
officer,  etc.,  which  debts  are  excepted  by  the  Act.     (Sackett  v.  Andross, 
5  Hill,  327;  Maples  v.  Burnside,  i  Den.  332;  Dresser   v.  Brooks,  3 

tBarb.  429.)     These  decisions,  as  will  be  seen,  were  not  made  under  the 
present  Bankruptcy  Act. 

26.  How  Pleaded. — A  discharge  duly  granted  under  the  Bank- 
rupt Act  of  1867  may  be  pleaded  by  a  simple  averment  that  on  the 
day  of  its  date  such  discharge  was  granted  to  him,  setting  the  same  forth 
in  hcec  verba,  as  a  full  and  complete  bar  to  all  suits  brought,  the  certifi- 
cate to  be  conclusive  evidence  of  the  .facts  of  the  discharge.     (Act  of 
Congress,  March  2d.,  1867;  14  Stat.  at  Large,  533.)     This  is  the  rule 
to  be  followed  in  this  class  of  answers.     For  form  of  pleading  a  dis- 
charge under  the  Act  of  1 84 1 ,  see  (Exparte  Balch,  3  McLean,  221;  White 
i).  How,  Id.  291;  see  "Chitty's  Form  of  Practice,"  no;  McNulty  v. 
Frame,  i  Sandf.  128;  McCormick  v.  Pickering,  4  N.Y.  276;  see,  also, 
Sackett  v.  Andross,  5  Hill,  327;  Stephens  v.  Ely,  6  Id.  607;  Seaman 
v.  Stoughton,  3  Barb.  Ch.  344;  Johnson  v.  Fitzhugh,  Id.  360;  McCabe' 
v.  Cooney,  3  Sandf.  Ch.  314;  Dresser  v.  Brooks,  3  Barb.  429;  Moore 
v.  Cloyes,   n  Id.  100;  Varnum  z>.  Wheeler,  i   Den.  331;  Maples   v. 
Burnside,  Id.  33*2;  Ruckman  v.  Cowell,   i  N.Y.  505.)     For  a  brief 
form,  see  Stephens  v.  Ely,  6  Hill,  607. 

27.  Form. — For  a  form  showing  defendant  is  a  bankrupt,  see  Gil- 
Ion  v.  Bruen,  5  N.Y.  Leg.  Obs.  227. 

28.  Presentation  of  Papers. — A  general  allegation  that  such 
affidavits,  schedules,  and  other  necessary  and  proper  papers   as  are 
required  by  the  Bankrupt  Act  were  presented,  is  not  enough,  but  the 
plea  should  state  what  papers  were  presented.     (Sackett  v.  Andross,  5 
Hill,  327.)     It  should  be  averred  that  the  petition  of  the  bankrupt  was 
presented  to  the  Court,  and  the  discharge  granted  by  the  Court,  and  not 
by  the  Judge.     Gillon  v.  Bruen,  5  N.Y.  Leg.  Obs.  227;  Sackett  v.  And- 
ross, 5  Hill,  327. 

29.  Voluntary  Assignment. — A  voluntary  assignment  by  debtors 
for  the  benefit  of  their  creditors,  which  would  have  been  good  at  com- 
mon law,  and  was  permitted  by  the  State  Insolvency  Law,  was  held  valid, 
although  the  United  States  Bankrupt  Law  was  in  force  and  applicable 
at  the  time  of  the  assignment.     (Hawkins'  Appeal,  34  Conn.  548;  Sedg- 
wick  v.  Place,  Id.  552.)     Debt  resulting  from  the  neglect  of  an  attor- 


708  FORMS    OF    SPECIAL   PLEAS. 

ney  at  law  to  pay  over  to  his  client  money  which  he  had  collected  for 
him  is  not  a  debt  contracted  while  acting  in  a  fiduciary  capacity,  and 
was  not  as  such  excepted  from  being  discharged  by  a  certificate  under 
the  United  States  Bankrupt  Act  of  1841.  Wolcott  v.  Hodge,  15 
Gray,  547. 

No.  581. 

The  Same — By  Composition   Deed. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  he  admits  that  on  the  ....  day  of , 

1 8 .  . ,  he  was  indebted  to  the  plaintiffs,  as  alleged  in  the 
complaint. 

II.  That  afterwards,  on  the  ....  day  of , 

1 8*.  . ,  at ,  the  plaintiffs,  by  their  deed  under 

seal,  agreed  with  the  defendant  that  they  would  accept 

........   dollars,  then  and   there  paid   them   by  the 

defendant,  and  by  the  plaintiffs  then  and  there  accepted 
and  received  in  full  satisfaction  of  said  indebtedness, 
a  copy  of  which  deed  is  hereto  annexed  as  a  part  hereof. 
[Insert  copy.~\ 


30.  Assignment. — For  the  allegations  of  an  answer  setting  up 
an  assignment  for  benefit  of  creditors  made  as  a  composition,  see  (Wat- 
kinson  v.  Ingslesby,  5  Johns.  386.)     Such  a  plea  is  bad  on  demurrer  if 
it  does  not  aver  payment  or  a  tender  of  the  composition,  although  it 
stated  that  defendant  was  "always  ready  and  willing  to  pay  the  same. 
Fessard  v.  Mugnier,  18  C.B.  (S.C.)  286. 

31.  Renewal  Notes. — For  the  allegations  of  an  answer  alleging 
composition  by  giving  renewal  notes  which  the  plaintiff  subsequently 
refused  to  receive,  see  (Warbury  v.  Wilcox,  7  Abb.  Pr.  336.)    A  note 
given  in  consideration  of  an  antecedent  indebtedness  does  not  per  se 
discharge  the  debt.     In  the  absence  of  an  agreement  to  the  contrary, 
the  only  effect  is  to  suspend  the  remedy  until  the  maturity  of  the  note. 
Smith  v.  Owens,  21  Cal.  u. 


FORMS  OF  SPECIAL  PLEAS.  709 

32.  Securities. — If  the  creditors  of  a  failing  debtor  agree  among 
themselves,  with  the  assent  of  the  debtor,  to  a  composition  of  their 
respective  debts,  and  to  receive  in  lieu  thereof  securities  of  a  certain 
character,  and  one  of  the  creditors  subsequently  obtains  from  the  debtor 
new  notes  of  a  character  more  favorable  to  the  creditor  than  those 
provided  for^in  the  composition  "agreement,  such  new  notes  are  void  for 
fraud,  not  only  as  to  the  other  creditors,  but  as  to  the  assenting  debtor. 
Smith  v.  Owens,  2 1  Cal.  1 1 . 


Compromise. 

[TITLE.] 

The  defendantfanswerSjto  the  complaint: 

I.  \State  demand  set  up  by  plaintiff ^\ 

II.  That  afterwards  on  the  ....  day  of , 

1 8 . . ,  at   ,   the  defendant  agreed  to  pay  and 

the  plaintiff  agreed  to  accept dollars,  in  full 

satisfaction  of  said  claim,  as  a  compromise  thereof. 

III.  That  on  the    ....   day  of ,   18 .  . ,   at 

,  the    defendant   paid  and   the    plaintiff    so 

accepted  said  sum. 


33.  Agreement. — By  agreement  between  creditor  and  debtor,  a 
less  sum  than  the  whole  amount  may  be  paid  and  received  in  full  pay- 
ment and  discharge  of  any  indebtedness,  if  such  agreement  be  fuHy 
manifested  by  a  receipt  or  instrument  in  writing  signed  by  such  cred- 
itor. Stat.  of  Cal  1867-8,  p.  31. 


7IO  .  FORMS    OF   SPECIAL   PLEAS. 

No.  583. 

Credit  Unexpired. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  goods  mentioned  therein  were  sold  to 

him  upon  a  credit  of months  from  the  .... 

day  of ,  1 8 ... 

II.  That  such  period  had  not  elapsed  before  the  com- 
mencement of  this  action. 


34.  How  Pleaded. — An  allegation  in  an  answer  that  certain 
goods  were  sold  on  a  credit  which  had  not  expired  is  a  conclusion  of 
law.     (Levinson  v.  Shwartz,  22  Cal.  229.)    The  facts  from  which  the 
conclusion  is  drawn  should  be  stated.     Such  a  plea  is  held  to  be  not 
new  matter  requiring  a  reply,  but  a  special  denial  that  the  defendant  is 
indebted,  as  alleged  in  the   complaint.     Gilbert  v.  Cram,   12    How. 
Pr.  455- 

35.  Must   be   Specially  Pleaded. — It  would  seem  that  in 
Pennsylvania,  the  fact  that  a  suit  was  brought  in  violation  of  an  agree- 
ment to  give  time  is  not  a  reason  for  dismissing  the  action.     It  should 
have  been  regularly  pleaded  and  tried.     (Murdock  v.  Steiner,  45  Penn. 
349.)     A  covenant  not  to  sue  for  five  years  is  no  bar  to  an  action  within 
that  time.     Howland  v.  Marvin,  5  Cal.  501. 

36.  Objection,  how  Taken. — The  objection  that  the  suit  was 
commenced  before  the  cause  of  action  accrued  should  be  taken  by 
answer.    Smith  v.  Holmes,  19  N. Y.  271, 


FORMS     OF    SPECIAL   PLEAS.  Jll 

No.  584. 

Death  of  Defendant  Before  Suit. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  A.  B.,   one  of  the    defendants    in  this    action, 

died  at ,  before  this  action,  and  on  or  about 

the  ....  day  of 


37.  Action  -will  not  Abate. — An  action  shall  not  abate  by  the 
death  or  other  disability  of  a  party,  or  by  the  transfer  of  any  interest 
therein,  if  the  cause  of  action  survives.     But  the  Court  on  motion  may 
allow  the  action  to  be  continued  by  or  against  his  representative  or  suc- 
cessor in  interest.     In  case  of  any  other  transfer  of  interest,  the  action 
may  be  continued  in  the  name  of  the  original  party,  or  the  person  to 
whom  the  transfer  is  made  may  be  substituted.     (Cal.  Pr.  Act,  §  16; 
N.Y.  Code,  §  121 ;  Laws  of  Oregon,  §  38;  Idaho,  §  16;  Nevada,  §  16; 
Wash.  T.,  §  38;  2  Whitt.  Pr.  §  204.)  '  Sections  i6anli  17  of  our  Prac- 
tice Act  give  a  party  the  right  to  intervene  in  case  of  a  transfer  of  any 
interest  during  the  pendency  of  suit,  either  before  or  after  issue  joined. 
Brooks  v.  Hager,  5  Cal.  281. 

38.  Cause  of  Action. — Whether  the  cause  of  action  survives  on 
the  death  of  a  party  depends  upon  local  law.     (Hatfield  v.  Bashnell, 

1  Blatchf.  393.)    But  causes  of  action  ex  delicto  die  with  the  defendant. 
(Jones  v.  Vanzant,  4  McLean,  604;  Henshaw  v.  Miller,  17  How.  Pr. 
212.)     So,  actions  in  trespass  do  not  survive.     (Dyckman  v.  Allen, 

2  How.  Pr.  17.)    This  section  applies  only  where  the  cause  of  action 
survives  against  the  surviving  defendant.     (Williams  v .  Kent,  1 5  Wend. 
360.)     Although  technically  sounding  in  tort,  an  action  for  injury  to 
property  survives  in  the  same  manner  as  an  action  on  contract.     Hayt 
v.  Hayt,  19  N.Y.  464. 

39.  Common  Law  Rule. — The  Statute  has  cfianged  the  prac- 
tice in  this  respect,  for  at  common  law  all  personal  actions  die  with  the 
party.      (Wilber  v.  Gilmore,  21  Pick.  250.)      So,  at  common  law,  in 
actions  ex  delicto,  where  the  wrong  doer  acquired  no  real  gain,  although 


712  FORMS  OF  SPECIAL  PLEAS. 

the  injured  party  may  have  much  loss,  the  death  of  either  party  de- 
stroyed the  right  of  action.  Middleton  v.  Robinson,  i  Bay  R.  58;  Pitts 
v.  Hale,  3  Mass.  R.$2i;  Millenz*.  Baldwin,  4  Mass.  480;  Holmes  v. 
Moore,  5  Pick.  R.  257. 

40.  Death  of  Sole  Plaintiff.— On  the  death  of  a  sole  plaintiff, 
the  action  may  be  continued  in  the  name  of  the  representative  of  the 
decedent.      Ridgeway  v.  Bulkeley,  7  How.  Pr.  269;  Green  v.  Bates, 
Id.  296;   Banta  v.  Marcellus,  2  Barb.  373;    Bain  v.  Pine,  i  Hill,  616; 
Jarvis  v.  Felch,  14  Abb.  Pr.  46;    Reed  v.  Butler,  n  Abb.  Pr.  128; 
Scranton  v.  Baxter,  i  Code  R.  (N.S.)  88. 

41.  Death  of  Sole  Defendant. — On  the  death  of  sole  defend- 
ant before  verdict  or  judgment,  his  representatives  cannot  be  substi- 
tuted against  the  wishes  of  plaintiff.  (Keene  v.  LaFarge,  i  Bosw.  671.) 
An  action  in  such  case  for  the  recovery  of  possession  of  specific  per- 
sonal or  real  property  wholly  abates.     (Hopkins  v.  Adams,  5  Abb.  Pr. 
351;    Mosely  v.  Mosely,  n   Abb.  Pr.  105;  Putnam  v.  Van  Buren,   7 
How.  Pr.  31;    Mosely  v.  Albany  N.  R.R.  Co.,  14  How.  Pr.  71.)      In 
an  action  to  recover  damages  for  death  by  a  wrongful  act,  the  action 
may  be  continued  against  personal  representatives  of  deceased.      Yer- 
tore  v.  Wiswell,  16  How.  Pr.  8;  Doedt  v.  Wiswell,  15  How.  Pr.  128. 

42.  Death  of  One  of  Several  Defendants. — In  case  of  the 
death  of  one  of  several  defendants,  the  action  may  be  continued  as  to 
the  others.    (Gardners.  Walker,  22  How.  Pr.  405;  Gordon  v.  Sterling, 
13  How.  Pr.  405.)  Where  defendants  are  executors,  trustees,  joint  ten- 
ants ,  or  co-partners,  the  action  continues  against  the  survivors.  Lachaise 
v.  Libby,  13  Abb.  Pr.  7;  Buckman  v.  Brett,  13  Abb.  Pr.  119. 

43.  Death  of  Husband. — A  wife  may  proceed  or  not,  at  her 
election,  and  is  not  liable  for  costs  if  she  refuses.      (2  Dick.  866;  Mitf. 
PI.  59;  Dewall  v.  Covenhoven,  5  Paige,  581.)     A  demand  in  right  of 
the  wife  does  not  abate  on  death  of  the  husband.     (Id.;  McDowl  v. 
Charles,  6  Johns.  Ch.  132.)    If,  after  decree  of  divorce,  directing  division 
of  common  property,  the  husband  dies,  the  heirs  must  be  substituted  as 
parties  in  his  stead.     (Ewald  v.  Corbett,  32  Cal.  493.)      In  New  York, 
an  action  to  recover  a  wife's  separate  estate  does  not  abate  in  conse- 
quence of  the  dea'th  of  the  husband.    McDowl  v.  Charles,  6  Johns.  Ch. 
132;  Dewell  v.  Covenhover,  5  Paige,  581. 

44.  Death  of  Wife. — An  action  against  husband  and  wife,  for 


FORMS    OF    SPECIAL    PLEAS.  713 

the  debt  of  the  wife  contracted  while  •zfemme  sole,  abates  on  her  death 
before  judgment.  (Williams  v.  Kent,  1 5  Wend.  360.)  The  death  of  a 
wife  defeats  a  recovery  by  the  husband  in  an  action  for  the  homestead. 
Gee  v.  Moore,  14  Cal.  472. 

45.  Death  of  Appellant. — In  action  on  a  personal  tort,  on  the 
death  of  appellant  during  appeal  from  a  judgment  against  him,  the  ap- 
peal may  be  continued  by  his  representatives  in  their  name.     (Miller  v. 
Gunn,  7  How.  Pr.  159;  but  see  Hastings  v.  McKinley,  8  How.  Pr. 
175.)    In  writs  of  error  in  the  Supreme  Court,  U.S.,  see  (Green  v.  Wat- 
kins,  6    Wheat.  S.  Ct.  260;    McKinney  v.  Carroll,  12  Pet.  S.  Ct.  66; 
McNutt,  v.  Bland,  2  How.  S.  Ct.  9.)    As  to  limitation  of  time  for  sug- 
gestion of  death,  see  (Phillips  v.  Preston,  n  ffozv.  S.  Ct.  294.)     The 
death  of  appellant,  after  argument  of  the  case  upon  appeal,  does  not  con- 
stitute a  ground  for  delaying  decision  or  departing  from  the  ordinary 
course  of  procedure.     Judgment  may  be  entered,  but  it  should  be  on 
a  day  anterior  to  appellant's  death.     Black  v.  Shaw,  20  Cal.  68 ;  Beach 
v.  Gregory,  2  Abb.  Pr.  203. 

46.  Death  before   Trial. — Where  plaintiff  in  an  action  died 
before  trial,  and  the  subsequent  order  for  judgment  contained  a  recital  as 
follows:  "This  action  having  been  continued,  in  consequence  of  death 
of  plaintiff,  by  his  executor,  Samuel  Webb,  and  jury  having  found 
verdict  for  plaintiff,  and  then  awarded  judgment  in  favor  of  plaintiff:" 
Held,  that  a  recital  sufficiently  showed  a  suggestion  of  death  of  original 
plaintiff,  and  continuance  and  revival  of  the  cause  in  the  name  of  the 
executor.     Sanchez  v.  Roach,  5   Cal.  248;  Gregory  v.  Haynes,  21  Cal. 
443;  Warren  v.  Eddy,  13  Abb.  Pr.  28. 

47.  Death  before  Argument. — The  rule  is  different  if  the 
death  occurs  previous  to  argument.    In  that  event,  proceedings  can  only 
be  had  upon  leave  given  after  suggestion  of  death  is  made.     Black  v. 

Shaw,  20  Cal.  68. 

• 

48.  Death   after  Verdict. — Where  a  party  to  an  action  dies 
after  verdict  or  other  decision  thereon,  judgment  in  pursuance  of  such 
verdict  or  decision  may  nevertheless  be  rendered,  as  provided  in  Section 
two  hundred  and  two  of  the  Practice  Act,  but  in  no  other  such  case  can 
judgment  be  rendered  so  as  to  affect  the  interests  of  the  representatives 
or  successors  of  the  party  deceased,  without  the  proper  substitution  of 
such  representatives  or  successors.     Judson  v.  Love,  35  Cal.  Rep.  463. 


714  FORMS     OF    SPECIAL    PLEAS. 

49.  Death    before    Judgment. — Death  of   defendant  before 
judgment  destroys  the  lien  of  an  attachment,  and  the  property  passes 
into  possession  of  the  administrator.      (Myers  v.  Mott,  29  Cal.  359.) 
The  death  of  a  party  before  judgment,  when  presumed,  though  not 
proved,  renders  any  subsequent  proceedings  irregular.     (Gerry  v.  Post, 
13  How.  Pr.  1 1 8.)  The  death  of  a  party  after  hearing,  but  before  actual 
decision,  works  no  abatement;  judgment  may  be  entered  nunc  pro  tune. 
Ehle  v.  Mayer,  8  How.  Pr.  244;    Diefendorf  v.  House,  9  How.  Pr. 
243;  Crawford  z>.  Wilson,  4  Barb.  504. 

50.  Death    after    Judgment. — Death  of  party  after   decree 
works  no  abatement.     Cowell  v.  Buckelew,  14   Cal.  641;  Thwing  v. 
Thwing,  18  How.  Pr.  458;  9  Abb.  Pr.  323;    Lynde  v.  O'Donnell,  21 
How.  Pr.  34;  12  Abb.  Pr.  286. 

51.  Death    Pending   Supplementary   Proceedings. — The 

proceedings  abate  on  the  death  of  sole  judgment-debtor.     Hasewell  v. 

Penman,  2  Abb.  Pr.  230. 

* 

52.  Equity. — In  equity  the  suit  does  not  abate  by  death  of  a  co- 
plaintiff  or  co-defendant;  the  suit  maybe  amended  by  adding  the  neces- 
sary parties.     Fisher  v.  Rutherford,  Baldw.  188. 

53.  Party  Civilly  Dead. — When  plaintiff  or  defendant  is  sen- 
tenced to  states  prison,  the  action  abates.    Graham  v.  Adams,  2  Johns. 
Cas.  408;    O'Brien  v.  Hagan,   i  Duer,  664;   Freeman  v.  Frank,  10 
Abb.  Pr.  370. 

54.  Suggestion  of  Death. — It  is  regular  and  proper  to  suggest 
the  death  of  a  party  to  an  action  in  any  court,  and  at  any  stage  of  the 
proceedings,  and  the  death  of  a  party  occuring  before  the  appeal  taken 
may  be  shown  in  this  court  by  affidavit  of  the  fact.      Judson  v.  Love, 
35  Cal.  463. 

'No.  585. 

Duress. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.   That  the  [bond]  mentioned  therein  was  extorted 
from  him  by  threats  of  personal  violence,  and  was  exe- 


FORMS  OF  SPECIAL  PLEAS.  715 

cuted  by  him  under  fear  of  the  same  [or  from  fear  while 
in  prison,  etc. — state  force,  etc.~\ 

II.    That  the  said  [bond]  was  executed  by  him  with- 
out any  consideration  therefor. 

JVo.  586. 

Former  Judgment. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  on  the  ....  day  of ,  1 8 . . ,  at , 

in  an  action  then  pending  in  the Court,  between 

A.  B.  plaintiff,  and  C.  D.  defendant,  and  for  the  same 
cause  of  action  as  that  set  forth  in  the  complaint  herein, 
judgment  was  duly  rendered  [describe  the  judgment]. 


55.  Dismissal  of  Suit. — A  dismissal  of  the  complaint  upon  the 
merits  bars  a  fresh  action,  especially  where  the  complaint  is  in  equity. 
(Bostwick  v.  Abbott,  40  Barb.  331;    16  Abb.  Pr.  417.)     Dismissal  of 
suit  to  obtain  probate  of  a  will  is  no  bar  to  introduction  of  evidence  to 
show  its  fraudulent  destruction,  to  establish  title  in  partition.     (Harris 
v.  Harris,  26  N.Y.  433.)     But  judgment  of  dismissal  of  premature  suit 
is  no  bar  to  a  fresh  action  on  the  demand,  when  matured.     (Wilcox  v. 
Lee,  26  How.  Pr.  418;  i  Abb.  Pr.  (N.S.)  250.)     So,  also,  dismissal  on 
ground  of  want  of  capacity  to  sue  is  no  bar  to  subsequent  action  legally 
instituted.      (Robbins  v.  Wells,   26  How.  Pr.  15;    18  Abb.  Pr.  191.) 
And  when  dismissal  of  complaint  is  relied  upon  in  bar,  it  must  be  shown 
that  it  was  a  judicial  determination  of  the  same  point.     (Smith  v.  Ferris, 
I  Daly,  1 8.)     Ordinarily,  where  an  action  is  dismissed  without  any 
judicial  determination  of  the  controversy,  it  is  no  bar  to  another  suit. 

56.  Effect  of  Former  Judgment. — Where  a  court  in  a  former 
action  between  the  same  parties  had  jurisdiction  over  the  subject  and 
the  parties,  and  the  questions  of  fact  were  the  same  as  in  the  subsequent 
action,  and  were  necessary  to  its  decision,  and  either  were  or  might 
have  been  litigated  in  the  suit,  and  the  final  hearing  was  upon  its  merits, 


716  FORMS    OF    SPECIAL    PLEAS. 

the  judgment  is  res  adjudicate,  as  to  all  those  things  that  were,  or,  under 
the  pleadings,  might  have  been  controverted  in  that  action  whose  ad- 
judication was  necessary  to  the  final  disposition  of  the  case.  Keene  v. 
Clark,  5  Rob.  38. 

57.  Effect  of  Plea. — If  parties  go  to  trial  on  a  plea  of  former 
recovery  in  an  attachment  execution,  without  a  replication,  this  does 
not  amount  to  a  confession  of  the  truth  of  the  facts  stated  in  the  pi  ea. 
Tarns  v.  Bullitt,  36  Penn.  308. 

58.  Essential  Allegations. — It  is  not  necessary  to  allege  that 
the  former  judgment  is  in  full  force.     (Southern  Life  Ins.  and  Trust 
Co.  v.  Davis,  4  Edw.  588.)     In  Iowa  and  Indiana,  such  a  plea  must 
be  accompanied  with  an  exhibit  of  the  record.      (19  Ind.  392;    u 
Iowa,  480.)     A  plea  cannot  contradict  the  record  of  a  former  suit. 
Errors  in  the  original  suit  should  have  been  corrected  as  they  occured. 
Hall  v.  Singer,  3  McLean,  17. 

59.  Foreign  Adjudication. — If  defendant  relies  upon  proceed- 
ings under  the  statute  of  another  State,  he  must  set  out  the  statute, 
that  the  Court  may  see  whether  the  proceedings  were  warranted  by  the 
statute  or  not;  and  the  general  allegation  that  the  proceedings  were 
pursuant  to  the  statute  is  not  sufficient.      Walker  v.  Maxwell,  i  Mass. 
104;  Holmes  v.  Broughton,  10  Wend.  75. 

60.  Foreign  Judgment. — A  plea  which  sets  up  a  foreign  judg- 
ment must  contain  an  allegation  that  the  court  had  jurisdiction,  or  so 
much  of  the  proceedings  must  be  spread  on  the  record  as  will  show 
affirmatively  that  the  court  had  jurisdiction.      (Burnham  v.  Webster, 
Daives,  236.)     Judgment  of  a  foreign  tribunal,  having  full  cognizance 
of  the  same  controversy,  held  conclusive  upon  the  merits,  and  only 
impeachable  for  want  of  jurisdiction  or  fraud,  Lazier  v.  Westcott,  26 
N.F.  146;    Phillips  v.  Godfrey,  7  Bosw.   150;    Jarvis  v.  Sewall,  40 
Barb.  449. 

61.  Forms  of  Plea. — For  a  plea  of  an  adjudication  that  the 
assignment  under  which  plaintiffs  claimed  was  fraudulent  and  void, 
see  (Southern  Life  Ins.  Trust  Co.  v.  Davis,  4  Edw.   588.)    Under 
what  plea  former  adjudication  may  be  presented  as  a  defense,  see 
(Welsh   v.   Lindo,   Cranch  C.  Ct.  508.)     For   an  insufficient  plea  of 
attachment  in  former  action,  see  (New  England  Screw  Co.  v.  Bliven, 
3  B  latch/.  240;   compare  Stone    v.   Stone,   Cranch  C.  Ct.  119.)    A 


•        FORMS     OF    SPECIAL    PLEAS. 

plea  which  sets  up  in  bar  of  an  action  upon  a  contract  that  property 
was  attached  in  a  previous  suit  to  answer  for  the  same  demand,  and 
was  lost,  should  show  how  the  loss  occurred.  Starr  v.  Moore,  3  Mc- 
Lean, 354. 

62.  How  Pleaded. — Where  a  judgment  in  a  prior  suit  is  set  up 
in  defence  to  an  action,  a  complete  record   of  all  the  pleadings  and 
proceedings  in  the  case  in  which  it  was  rendered  should  be  made  part 
of  the  answer.   (Willeainson  v.  Foreman,  23  Ind.  540;  Ringle  v.  Weston, 
Id.  588.)  The  rule  thatadecree  must  be  enrolled  before  it  can  be  pleaded 
in  bar  of  a  second  bill  for  the  same  matter,  is  not  applicable  to  a  case 
where  the  bill  is  filed  to  impeach  a  decree  on  the  ground  of  fraud. 
Pearse  v.  Dobinson,  Law  Rep.  i  Eq.  244. 

63.  Must  be  Specially  Pleaded. — A  judgment  in  a  former 
suit  between  the  same  parties,  for  the  same  cause,  and  in  the  same 
firm,  is  a  bar  to  any  other  suit.     (McKnight  v.  Taylor,  i  Mo.  282.) 
But  such  judgment  must  be  specially  pleaded.   (Love  v.  Waltz,  7  Cal. 
250;  Uhlfelder  v.  Levy,  9  Id.  607;  Piercy  v.  Sabin,  10  Id.  22;  Vance 
v.  Olinger,  27  Cal.  358;  Marshall  v.  Shafter,  32   Cal.   176;  Brazil  v. 
Isham,  2  Kern.  17;  Hendricks  v.  Decker,  35  Barb.  298;  Hopkins  v. 
Sheltonj    i    Ala.    303;    Richards    v.   Hickman,    22    Ind.    244;   see 
Welsh  v.  Lindo,  i  Cranch  C.   Ct.   508.)     For  evidence  of  a  former 
recovery  for  the  same  cause  of  action  cannot  be  given  in  any  action 
whatever,  under  an  answer  containing  only  denials  of  the  complaint,  or 
an  allegation  of  the  pendency  of  another  action.     (N.Y.  Code-  §  149; 
Hendricks  v.  Decker,  35  Barb.  298.)    The  rule  of  the  old  practice, 
permitting  such  evidence  to  be  given  under  the  general  issue  in  actions 
of  ejectment  and  trover  (2  Hill,  478;    5  Id.  61;    6  Id.  125;    6  Wend. 
284;  9  Id.  9),  is  abrogated  by  the  Code.     Hendricks  v.  Decker,  35 
Barb.  298. 

64.  Parties. — If  the  parties  are  not  the  same,  allegations  to  show 
their  privity  with  the   present  parties  must  be  Inserted.     Goddard  v. 
Benson,  15  Abb.  Pr.  191. 

65.  Offer  of  Testimony  in  Former  Suit.  —  The  judgment 
or  decree  of  a  court  of  competent  jurisdiction  is  not  only  final  as  to 
the  matter  actually  determined,  but  as  to  every  other  matter  which  the 
parties  might  have  litigated  and  had  decided  under  the  pleadings.    (La 
Guen  v.  Gonverneur,  I  John.  Cas.  436;  approved  in  Bruen  v.  Hone,  2 
Barb.  596;  Southgate  v.  Montgomery,  i  Paige,  47;  Simpson  v.  Hart, 


71 8  FORMS  OF  SPECIAL  PLEAS.    • 

\\John,  77.)  The  rule  is,  however,  more  properly  and  less  broadly 
stated  in  (Miller  v.  Maniee,  6  Hill,  121),  a  case  where  the  general 
declaration  embraced  several  causes  of  action.  It  was  held  that  the 
plaintiff  in  a  second  suit  may  show  that  he  "  offered  "  no  evidence  as 
to  one  of  the  causes,  and  that  the  cause  went  to  the  jury  upon  a  differ- 
ent part  of  his  claim  from  that  for  which  his  second  suit  is  brought,  in 
which  case  the  judgment  in  the  first  will  be  no  bar  to  the  second.  But 
where  he  attempts  to  give  evidence,  and  submits  the  question  to  the  jury 
without  withdrawing  any  part  of  his  claim,  the  defendant  may  insist 
upon  the  first  judgment  as  a  bar.  Barnum  v.  Reynolds,  Cal.  Sup.  Ci., 
Oct.  T.,  1869. 

66.  When  a  Bar. — A  former  judgment  rendered  in  an  action 
tried  upon  its  merits,  between  the  same  parties,  and  upon  the  same 
subject  matter,  is,  if  properly  pleaded,  an  effectual  bar  to  another  action 
between  the  same  parties  on  the  same  cause;  but  it  is  no  defense  to  a 
cause  of  action  accrued  after  the  rendition  of  such  judgment.     (Jones 
v.  City  of  Petaluma,  36  Cal.  230;  Barnum  v.  Reynolds,  Cal.  Sup.  Ct., 
Oct.  T.,  1869.)     Where  the  same  subject  matter  has  been  fairly  put  in 
issue  and  once  tried  upon  its  merits,  it  cannot  be  again  litigated,  and  a 
former  judgment  is  a  bar -so  long  as  it  remains  unreversed.    (McKnight 
v.  Taylor,  i  Mo.  282.)    A  judgment  in  a  justice's  court  for  damages 
caused  by  the  alleged  diversion  of  a  stream  of  water  is  a  bar  to  a  sub- 
sequent action  in  the  Supreme  [District]  Court  involving  the  same 
issues.     (Boyer  v.  Schofield,  2   Keyes,   628.)     Adjudication  in  former 
suit  conclusive  as  to  defense  then  existent,  but  not  so  as  to  another 
subsequently  arising,  and  which  could  not  then  have  been  interposed. 
Smiths.  McCluskey,  45  Barb.  610. 

67.  When  not  a  Bar. — A  judgment  in  a  former  action  is  not  a 
bar  to  a  subsequent  action,  although  the  pleadings  present  the  same 
matter,  if  it  appear  either  by  the  record,  or,  it  seems,  by  extraneous  evi- 
dence, that  the  matter  ^question  was  not  litigated,  and  actual  evidence 
was  not  given  as  to  it,  and  it  was  not  submitted  to  the  Court,  but  that 
the   trial   and   verdict  proceeded   upon   other  grounds.     (Burwell  v. 
Knight,  51  Barb.  267.)     A  decree  dismissing  a  bill  for  matters  not 
involving  merits  is  no  bar  to  a  subsequent  suit.     (Hughes  v.  United 
States,  4  Wallace  U.S.  232;  see,  also,  Tutton  v.  Addams,  45  Penn.  67.) 
A  judgment  against  one  of  two  several  obligors  is  no  bar  to  an  action 
against  the  other..    (Armstrong  v.  Prewett,  5  Mo.  476.)     In  an  action 
against  an   infant   for  damages,  a  judgment  of  discontinuance  in  a 


FORMS  OF  SPECIAL  PLEAS.  719 

former  action  for  the  same  cause,  brought  in  the  court  of  a  justice  of 
the  peace,  the  judgment  being  rendered  on  the  ground  that  the  defend- 
ant was  an  infant  and  no  guardian  had  been  appointed,  is  no  bar.  A 
justice  has  no  jurisdiction  to  proceed  against  an  infant  defendant,  after 
the  return  of  process,  until  a  guardian  has  been  appointed.  (Harvey 
v.  Large,  51  Barb.  222.)  When  court  rendering  judgment  has  failed 
to  acquire  jurisdiction,  over  the  person  or  subjecl,  matter  in  controversy, 
its  action  is  null,  and  no  bar  to  future  proceeding.  (Sagendorph  v. 
Schult,  41  Barb.  102;  Gage  v.  Hill,  43  Barb.  44;  Porter  v.  Bronson, 
29  How.  Pr.  292;  19  Abb.  Pr.  256.)  So,  also,  where  such  court  has 
not  exercised  its  jurisdiction  within  the  limits  imposed  by  statute. 

Bloomer  v.  Merrill,  29  How.  Pr.  259. 

• 

68.  When  an  Estoppel. — If  on  the  case  made  by  the  com- 
plaint, the  defendant  is  not  called  upon  or  has  no  opportunity  to  plead 
a  former  judgment  as  an  estoppel,  it  may  be  received  in  evidence  as 
matter  of  estoppel  without  having  been  pleaded.  (Jackson  v.  Lodge, 
36  Cal.  28.)  A  judgment  to  operate  as  an  estoppel  must  be  a  judg- 
ment of  a  court  of  competent  jurisdiction,  upon  the  same  subject  mat- 
ter, in  a  cause  regularly  tried  on  its  merits,  upon  issue  duly  joined  by 
proper  pleadings  in  such  court,  between  the  same  parties  or  their  privies. 
(Boggs  v.  Clark,  Cal.  Sup.  Ct.,  Apl.  T.,  1869.)  Suffering  judgment  for 
whole  amount  claimed  by  plaintiff  held  to  estop  defendant  from  bring- 
ing subsequent  suit  for  an  omitted  credit,  which  he  might  have  set  up 
as  a  defense,  (Binck  v.  Wood,  43  Barb.  315.)  And  recovery  of  part 
of  an  entire  demand  estops  any  suit  being  brought  for  the  residue. 
(Hopf  v.  Myers,  42  Barb.  270;  Bancroft  v.  Winspear,  44  Barb.  209.) 
Disallowance  of  claim,  as  set-off  in  one  action,  estops  another  being 
brought  for  it.  (Rogers  v.  Rogers,  i  Daly,  194.)  See,  also,  as*  to  sim- 
ilar effect  of  setting  up  demand  by  way  of  counter-claim,  (Collyer  v 
Collins,  17  Abb.  Pr.  467.)  A  judgment  obtained  pendente  lite  in  an 
action  previously  brought  may  operate  as  an  estoppel.  (Bank  of  Be- 
loit  v.  Beale,  7  Bosw.  61.)  See,  on  the  other  hand,  as  to  course  to  be 
pursued  when  judgment  relied  upon  as  an  estoppel  is  reversed  pendente 
Hie,  Gilchrist  v.  Comfort,  26  How.  Pr.  394. 


72O  FORMS    OF   SPECIAL   PLEAS. 

No.  587. 

Fraud. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  plaintiff  induced  him  to  make  the  note 
mentioned  in  the  complaint,  by  representing  that  he 
was  authorized  by  one  A.  B.,  to  whom  the  defendant 
owed  the  amount  of  the  same,  to  take  a  note  to  him- 
self in  satisfaction  of  such  debt  [or  otherwise  state  the 

fraudulent  misrepresentation,  etc.~\ 

II.  That  the  said  representations  were  false. 

III.  That  the  defendant  received  no  consideration  for 
the  said  note.  • 


NOTE. — This  form  is  from  the  Code  Commissioners'  Book,  of  New 
York. 

69.  Actual  Fraud  must  be  Shown. — To  set  aside  for  fraud 
a  decree  signed  and  enrolled,  actual,  positive  fraud  must  be  shown. 
Mere  constructive  fraud  is  not  sufficient,  at  all  events  after  long  delay. 
Patch  v.  Ward,  Law  Rep.  3  Ch.  203. 

70.  Fraudulent  Misrepresentations. — An  answer  seeking  to 
avoid  a  contract,  by  reason  of  fraudulent  misrepresentations  of  the 
plaintiff  in  procuring  it,  must  state  in  what  the  misrepresentations  con- 
sisted, and  they  must  be  of  matter  of  fact  of  which  defendant  was 
ignorant,  and  not  of  law.     People  v.  Supervisors  of  San  Francisco,  27 
Cal.  656. 

71.  How  Alleged. — The  answer  was  held  fatally  defective,  in 
not  charging  the  representations  to  have  been  fraudulently  made,  or 
that  there  was  a  warranty  of  some  particular  quantity.      (Kinney  v. 
Osborne,  14  Cal.  112.)     Where  an  answer  contains  a  general  allegation 
of  fraud,  and  plaintiffs  go  to  trial  upon  the  issue  thus  joined,  without 
taking  any  exception  to  the  answer  on  the  ground  of  sufficiency,  and 


FORMS  OF  SPECIAL  PLEAS.  721 

there  is  no  objection  made  by  the  plaintiffs  to  the  testimony  introduced 
by  defendants  in  support  of  the  issue  of  fraud,  an  objection  to  the 
answer,  on  the  ground  that  it  does  not  not  contain  a  statement  of  the 
particular  facts  and  circumstances  constituting  the  alleged  fraud,  can- 
not be  entertained  by  the  Supreme  Court  on  appeal.  King  v.  Davis, 
34  Cal.  100. 

72.  Must  be  Specially  Pleaded. — Fraud  must  be  specially 
pleaded,  and  the  circumstances  constituting  fraud  must  be  set  up. 
People  v.  Supervisors  of  San  Francisco,  27  Cal.  656;  Gushee  v.  Leavitt, 
5  Cal.  1 60;  Gifford  v.  Carville,  29  Id.  589;  Lamott  v.  Butler,  18  Id.  32. 

13.  Sufficient  Averment. — An  answer  alleging  that  a  judgment 
relied  on  by  the  plaintiff  was  obtained  by  fraud  and  collusion  between 
parties  named  is  sufficiently  definite  and  certain,  without  specifying  the 
acts  which  show  fraud  and  collusion.  (Culver  v.  Hollister,  17  Abb.  Pr. 
405;  S.C.,  less  fully,  29  How.  Pr.  479.)  An  answer  presents  a  good 
defense  to  an  action  which  is  brought  on  the  ground  of  fraud,  if  it 
states  circumstances  from  which  it  can  be  reasonably  inferred  that  the 
fraud  charged  could  not  have  been  practiced.  (Burk  v.  Stewig,  21 
Tex.  418.)  Case  where  it  was  held  the  answer  sufficiently  presented 
the  question  of  fraud,  Lamott  v.  Butler,  18  Cal  32. 


No.  588. 

Infancy    of   Plaintiff. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  is  not  of  the  age  of  twenty-one  years 
\if a  female,  eighteen  years];  or,  that  at  the  commence- 
ment of  this  action  the  plaintiff  was  not  of  the  age  of 
[twenty-one]  years. 


74.  Account. — The  defendant,  being  of  age,  signed  the  following 
statement  at  the  foot  of  an  account  of  the  items  and  prices  of  goods 
furnished  to  him,  while  an  infant,  by  the  plaintiff:  "  Particulars  of 
account  to  the  end  of  1867,  amounting  to  £162.  us.  6d.  I  certify  to 
be  correct  and  satisfactory."  Held,  that  this  was  not  such  a  ratification 

46 


722  FORMS    OF    SPECIAL   PLEAS. 

in  writing  of  the  contract,  within  (9  Geo.  IV.  14,  §  5),  as  to  render  him 
liable.     Rowez>.  Hopwood,  Law  Rep.  4  Q.  B.  i. 

75.  Majority  of  Females. — In  California,  females  are  deemed 
of  full  and  legal  age  when  they  are  eighteen  years  old.     Gen.  Laws  of 
Cal.  1  4,433- 

76.  Must  be  Specially  Pleaded. — That  infancy  must  be  spe- 
cially pleaded,  see  Young  v.  Bell,   i  Cranch  C.  Ct.  342. 


JVo.  589. 

Infancy  of  Defendant. 
[TrTLE.] 

The  defendant  answers  to  the  complaint: 

That  at  the  time  of  making  the  agreement  [or  of  the 
delivery  of  the  goods]  mentioned  therein,  he  was  not  of 
the  age  of  [twenty-one]  years. 

77.  Note. — In  all  this  class  of  actions,  where  the  disability  of 
defendant  is  claimed,  such  as  infancy,  lunacy,  etc.  etc.,  the  facts  causing 
such  disability  should  be  in  all  cases  specially  pleaded ;  for  in  general 
such  disability  cannot  be  proven  unless  pleaded.  See  Young  v.  Bell, 
i  Cranch  C.  Ct.  342. 

No.  590. 

Marriage  of  Plaintiff, 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  plaintiff  was,  at  the  commencment  of  this 
action,  and  still  is  the  wife  of  one  A.  B. 

II.  That  this  action  does  not  concern  her  separate 
property. 


FORMS  OF  SPECIAL  PLEAS.  723 

78.  Disability  must  Appear. — Where  the  disability  of  the 
plaintiff,  who  is  a  married  woman,  does  not  appear  upon  the  face  of 
the   complaint,    the  defendant,  if  he  intends  to   avail   himself  of  the 
coverture   as  a  defence  to  the  action,  should  set  it  up  in   his  answer. 
(Aitken  v.  Clark,  16  Abb.  Pr.  328.)     Such  objection  is  waived  by  a 
general  denial.     Dillaye  v.  Parks,  31  Barb,  132. 

79.  Divorce. — An  action  brought  in  the  names  of  husband  and 
wife,  to  recover  wife's  separate  estate,  does  not  abate  in  consequence 
of  divorce  and  subsequent  marriage  of  wife  with  another.     Calderwood 
v.  Peyser,  31  Cal  333. 

80.  Must  be  Specifically  Pleaded. — That  marriage  of  plaintiff 
must  be  specifically  pleaded.     See  Castree  v.  Grewell,  4  E.  D.  Smith, 
425;  Cheirac  v.  Reinicker,  n   Wheat.  280. 

81.  Name  of  Wife   Surplusage. — Where  the  husband  and 
wife  are  joined  as  plaintiffs,  and  the  contract  sued  on  and  set  forth  in 
the  complaint  was  made  between  the  husband  only  and  the  defendants, 
the  name  of  the  wife  was  mere  surplusage,  and  not  a  defect  of  parties 
under  the  Code,  and  might  have  been  stricken  out  on  notice,  if  insisted. 
Warner  and  Wife  v.  Steamship  "  Uncle  Sam,"  9  Cal.  697. 


JVo.  591. 

Marriage  of  Defendant. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  at  the  time  of  making  the  agreement  [or  of  the 
delivery  of  the  goods  mentioned  therein]  she  was  the 
wife  of  J.  K. 


82.  Marriage. — The  marriage  of  a  female  defendant  does  not 
abate  an  action.  (Campbell  v.  Bowne,  5  Paige,  34.)  But  the  marriage 
of  a  female  complainant  abates  the  suit,  and  it  must  be  revived  either  in 
favor  of  or  against  her  husband.  Quackenbush  v.  Leonard,  10 
Paige,  131. 


724  FORMS    OF     SPECIAL   PLEAS. 

No.  592. 

Marriage  of  Defendant  after  the  Contract  and  before  the  Action. 
[TITLE.]  , 

The  defendant  answers  to  the  complaint; 

I.  That   she   was,  at    the  commencement    of    this 
action,  and  still  is  the  wife  of  A.  B.,  who  now  resides 
at 

II.  That  this  action  does  not  concern  her  separate 
property. 


83.  Arbitration     and    Award.— The  plea  of  coverture,  and 
that  the  defendant's  husband  did  not  consent  to  the  arbitration  upon  the 
award  in  which  a  judgment  was  founded,  is  not  sufficient  in  proceeding 
by  scire  facias  to  review  the  judgment.     Though  this  plea  might  be  a 
good  defence  to  an  action  on  the  judgment,  yet,  until  such  judgment  is 
set  aside,  the  defendant  cannot  resist  the  scire  facias,  the  object  of  which 
is  to  enforce  process  upon  such  judgment.       Taylor  v.  Harris,  21 
Texas,  438. 

84.  Charging   Separate'  Estate. — In  an  action    brought  to 
charge  the  separate  estate  of  a  married  woman,  when  the  coverture  is 
alleged  in  the   complaint,  a  defense  that  the  defendant  is  a  married 
woman  is  bad  on  demurrer,  for  it  sets  up  no  new  matter.     (Aitken  v. 
Clark,  1 6  Abb.  Pr.  328.)     And  such  an  answer  is  insufficient.     Id. 

85.  Homestead. — A   married    woman  may    answer   separately, 
where  homestead  is  involved.      Moss  v.  Warner,  10  Cal.  292;  Harlay 
v.  Ritter,  18  How.  Pr.  147;  Phillips  v.  Burr,  4  Duer,  113. 

86.  Impotence. — Impotence  does  not  render  a  marriage  void,  but 
only  voidable,  and  the  validity  of  a  marriage  cannot  be  impeached 
on  that  ground  after  the  death  of  one  of  the  parties.     Therefore  the 
right  of  a  husband  to  administer  his  wife's  estate  cannot  be  disputed  on 
the  ground  of  the  nullity  of  the  marriage,  by  reason  of  his  impotence. 
A.  v.  B.,  Law.  Rep.  i  P.  &  D.  559. 


FORMS    OF    SPECIAL    PLEAS.  725 

87.  Promissory  Note. — An  answer  upon  a  promissory  note  that 
the  maker  is  a  married  woman,  is  sufficient  as  a  confession  and  avoid- 
ance. Scudderz>.  Gori,  18  Abb.  Pr.  223;  28  How.  Pr.  155, 


No.  593. 

Misjoinder  of  Parties. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  A.  B.  is  improperly  joined  as  a  plaintiff  [or 
defendant]  in  this,  that  he  has  no  interest  in  the  subject 
matter  in  controversy  [or  otherwise  state  reasons]. 


83.  Misjoinder  of  Parties. — Where  a  misjoinder  of  parties 
plaintiff  does  not  appear  upon  the  face  of  the  complaint,  and  the  ob- 
jection is  not  taken  by  answer,  it  is  deemed  waived.  (Hastings  v. 
Stark,  36  Cal.  122.)  As  to  non-joinder  of  parties  plaintiff  in  partition, 
see  (Sutler  v.  San  Francisco,  36  Cal.  112.)  Misjoinder  of  parties 
plaintiff,  owing  to  matters  which  have  occured  pending  the  action,  must 
be  taken  by  supplemental  answer,  or  it  is  waived.  Calderwood  v. 
Pyser,  31  Cal.  333;  Barstow  v.  Newman,  34  Cal.  90. 

89.  Objection  must  be  Taken. — Objection  should  be  taken 
by  demurrer  or  answer  to  the  misjoinder  of  parties  defendant.  An 
answer  will  not  be  treated  as  a  plea  in  abatement  for  a  misjoinder  of 
parties  defendant,  after  the  testimony  has  disclosed  a  proper  cause  of 
action  against  them.  (Warner  v.  Wilson,  4  Cal.  310;  Dunn  v.  Tozer, 
10  Cal.  170.)  The  objection  that  there  is  a  misjoinder  of  defendants 
must  be  raised  by  demurrer  or  answer;  and  if  not  so  raised,  the 
plaintiff  will  be  entitled  to  recovery  against  all  the  defendants.  Story 
v.  Livingston,  13  Pet.  359;  Minor  v.  Mechanics'  Bank  of  Alexandria, 
i  Pet.  46;  Oilman  v.  Rives,  10  Id.  298;  Chandler  v.  Byrd,  Hempst. 
U.S.  222]  Fosgate  v.  The  Herkimer  Manf.  and  Hydraulic  Co.,  2  Kern. 
580;  compare  Bates  v.  James,  3  Duer,  45. 


723  FORMS    OF    SPECIAL   PLEAS. 

JVo.  594. 

Misnomer. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.   That  the  true  name  of  the  plaintiff  [or  of  defend- 
ant] is  and  ever  has  been ,  and  not ,  . . , 

in  which  name  he  sues  [or  is  sued]. 


90.  Must    be    Pleaded. — Misnomer  of   plaintiff  or  defendant 
must  be  pleaded  in  abatement.     (Mann  v.  Carley,  4  Cow.  148;  Rule 
of  1825,  Id.  157;  Collman  v.  Collins,  2  Hall,  569;  Miller  v.  Stettiner, 
7  Bosiv.  692.)     And  this  is  so  even  in  case  of  a  corporation.     (Bank 
of  Utica  v.  Smalley,   2  Cow.  770;   Methodist  Episcopal  Church   v.. 
Tiyon,  i  Den.  451.)     In  suits  or  proceedings  by  or  against  any  corpor- 
ation, a  mistake  in  the  name  is  waived  if  not  pleaded  in  abatement. 
Misnomer  of  the  plaintiff  cannot  be  taken  advantage  of  on  the  trial 
or  by  plea  in  bar,  but  must  be  pleaded   in  abatement.        Hanly  v. 
Blanton,  i  Mo.  49;  Boisse  v.  Langham,  Id.  572;  Thompson  v.  Elliott, 
5  Id.  118. 

91.  Note. — It  is  a  familiar  rule  that  a  person  may  be  sued  by  a  fic- 
titious name,  bnt  a  personal  judgment  against  a  fictitious  person  or  agains* 
a  person  not  the  party  to  the  suit  would  of  course  be  worthless,  assum- 
ing that  such  judgment  could  be  obtained.     This  relates  to  defendant. 
A  plaintiff  ought  to  know  his  own  name. 

92.  Objection    must    be    Taken. — A    misnomer  of    parties 
plaintiff  must  be  objected  to  by  demurrer  or  answer,  and  cannot,  in 
the  absence  of  such  objection,  be  made  a  ground  for  nonsuiting  such 
of  the  plaintiffs  as  show  themselves  entitled  to  recover.     Rowe  v.  Bacci- 
galluppi,  21  Cal.  632. 


FORMS   OF    SPECIAL    PLEAS.  727 

No.  595. 

Mistake. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  when  he  signed  the  note  therein  mentioned, 
he  supposed  it  to  be  for  [one  thousand]  dollars,  but  by 
mistake  it  was  drawn  for  [ten  thousand]  dollars. 

II.  That  he  received  no  consideration  for  more  than 
[one  thousand]  dollars. 

No.  596. 

Non-Joinder  of  a  Necessary  Party  Plaintiff. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  goods,  wares  and  merchandizes  described 
in  the  complaint  were  sold  by  plaintiff  and  one  C.  D.  as 
partners,  under  the  name  of  A.  B.  &  C.  D. 

II.  That  the  said  C.  D.  is  still  living. 


93.  Non-Joinder. — A  failure  to  join  may  be  pleaded  in  abate- 
ment. (Whitney  v.  Stark,  8  Cal.  514.)  An  objection  for  a  defect  of 
parties,  e.g.,  the  non-joinder  of  a  co-partner  as  plaintiff,  which  is  not 
apparent  upon  the  face  of  the  complaint,  must  be  taken  by  demurrer 
or  answer.  (Code  of  Pro.  of  N.Y.  §§  144,  147.)  And  if  not  thus  in- 
terposed, the  defendant  must  be  held  to  have  waived  the  objection. 
(Alvarez  v.  Brannan,  7  Cal.  503;  Dunn  v.  Tozer,  10  Id.  167;  Gillain^ 
v.  Sigman,  29  Cal.  637;  Wendt  v.  Ross,  33  Cal.  650;  3  Kern.  336;  33 
Barb.  527;  31  Id.  238;  Conklin  v.  Barton,  43  Barb.  435.)  And  an 
answer  upon  the  merits  waives  all  such  defects.  Gillam  v.  Sigman,  29 
Cal.  637;  Wendt  v.  Ross,  33  Cal.  650;  Scranton  v.  Farmers'  and  Me- 
chanics' Bank,  33  Barb.  527;  Byxbie  v.  Wood,  22  N.Y.  607;  Mer- 


728  FORMS   OF    SPECIAL    PLEAS. 

ritt  v.  Walsh,  32  N.Y.  685;  Walrod  v.  Bennett,  6  Barb.  144;  Abbe  v. 
Clark,  31  Barb.  238. 


No.  597. 

Non-Joinder  of  Owners  in  Actions  Betiveen  Tenants  in  Common. 
\  TITLE.] 

The  defendant  answers  to  the  complaint: 

That and ,  residing  at ,  are 

tenants  in  common  with  the  plaintiff  in  said  lands,  and 
necessary  parties  to  this  action. 

No.  598. 

Non-Joinder  of  a  Co- Administrator. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  after  the  death  of  said  A.  B.,  and  on  or 
about  the  ....  day  of ,  1 8 .  . ,  letters  of  ad- 
ministration were  duly  issued  to  one  C.  D.,  together 
with  the  plaintiff,  by  the  Probate  Court  of  the  County 

of ,  and  said  C.  D.  thereupon  duly  qualified 

as  administrator,  and  as  such  entered  upon  the  duties 
of  his  trust,  and  still  is  such  administrator. 


94.  A  Special  Plea. — In  an  action  in  a  joint  contract,  the  omis- 
sion to  sue  all  the  joint  contractors  may  be  specially  pleaded.     (Leavitt 
v.  Turtle,  4  Kern.  465.)     The  same  in  an  action  against  an  attorney, 
one   of  a   partnership   composed  of  several   attorneys.     Wooster   v. 
Chamberlin,  28  Barb.  602. 

95.  Names  must  be  Given. — The  plea  must  give  the  names 
truly,  so  that  the  plaintiff  may  proceed  correctly  the  second  time.     I 


FORMS    OF    SPECIAL    PLEAS.  729 

it  appear  on  the  trial  that  another  not  named  by  the  plea  was  also  a  joint 
contractor,  the  proof  fails.  (Mechanics'  and  Farmers'  Bank  v.  Dakin, 
24  Wend.  411;  Hawks  v.  Hunger,  2  Hill,  200.)  This  rule  is  not 
changed  by  the  Code.  Fowler  v.  Kennedy,  2  Abb.  Pr.  347;  Dennis  v. 
Kennedy,  19  Barb.  517. 

96.  Objection  must  be  Taken. — The  fact  that  other  persons, 
jointly  responsible,  have  not  been  made  defendants,  must  be  pleaded  in 
abatement,  or  it  cannot  be  taken  advantage  of  on  the  trial.     The  rule 
applies  to  all  joint  contracts,  as  well  as  to  those  arising  particularly  from 
mercantile  partnerships.     (Ziele  v.  Cambell,  2  Johns.  Cas.  382;  Wil- 
liams v.  Allen,  7  Cow.  316;  Robertson  v.  Smith,  18  Johns.  459;  Le 
Paige  v.  McCrea,  7  Wend.  164, 

97.  Setting  Aside  Conveyance. — In  a  bill  to  set  aside  a  con- 
veyance, as  made  without  consideration,  and  in  fraud  of  creditors,  the 
alleged  fraudulent  grantor  is  a  necessary  defendant  in  the  bill.     Gay- 
lords  v.  Kelshaw,  i  Wall.  U.S.  81. 

98.  Still  Living. — The  answer  should  allege  that  they  are  still 
living;  (see  Bergess  v.  Abbott,  6  Hill,  135;  affirming  S.C.,  i  Id.  476;)  or, 
if  a  corporation,  that  it  is  still  in  existence.     (State  of  Indiana  v.  Woram, 
6  Id.  33.)     But  the  omission  to  allege  this  is  cured  by  proof  on  the 
trial  that  they  were  still  living.     Objection  to  such  proof  should  be  dis- 
regarded, or  the  answer  amended  to  conform  to  the  proof.     (Wooster  v. 
Chamberlin,  28  Barb.  602.)     It  sufficiently  alleges  that  they  are  still 
living,  if  it  alleges  that  they  reside  at  a  place  named.     Taylor  v.  Rich- 
ards, 9  Barb.  679. 

99.  Surplusage. — After  showing  the  facts  which  make  it  appear 
that  other  parties  are  necessary,  and  naming  the  parties,  it  is  unneces- 
sary to  add  a  formal  allegation  that  they  are  necessary  parties.     Cook 
v.  Mancius,  3  Johns.  Ch.  427 


73O  FORMS    OF    SPECIAL   PLEAS. 

No.  599. 

Non-Joinder  of  one  who  was  a  Party  to  the  Contract. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I .  That  the  supposed  contract  [or  other  cause  of  action] 

mentioned  in  the  complaint  was  made  with  said , 

plaintiff  [or  defendant],  and  one  A.  B.,  jointly. 

II,  That  the  said  A.  B.  is  still  living. 

JVo.  600. 

i.   Payment. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  on  the  ....  day  of ,  1 8 . . ,  at , 

he  paid  to  the  plaintiff  the  money  demanded  in  the  com- 
plaint [or dollars,  on  account  of  the  demand 

in  the  complaint]. 


98.  Effect  of  Plea. — By  the  pleas  of  payment  and  payment  with 
leave,  the  defendant  does  not  put  in  issue  his  original  legal  liability. 
Under  such  pleadings  he  can  only  show  that  he  has  paid  the  debt,  or 
that  he  has  an  equitable  defense  to  the  action.     Loose  v.  Loose,  36 
Penn.  538. 

99.  Excuse  for  Non-Payment. — What  amounts  to  an  alle- 
gation, in  pleading,  of  impossibility,  to  excuse  non-payment,  O'Reily 
».  Mutual  Life  Ins.  Co.,  2  Abb.  Pr.  R.  (N.S.)  167. 

100.  Evidence  of  Payment. — Under  a  simple  allegation  of 
payment,  evidence  of  any  facts  which  amount  to  actual  payment  by 
the  person  alleged  to   have  made  it,  is  admissible.        Farmers'  and 


FORMS  OF  SPECIAL  PLEAS.  731 

Citizens'  Bank  of  Long  Island  z>.  Sherman,  6  Bosw.  181;  Calkins  v. 
Packer,  21  Barb.  125. 

101.  How  Alleged. — The  answer  should  disclose  the  particulars  of 
the  transaction  relied  on  as  constituting  payment.  (Farmers'  and  Citizens' 
Bank  v.  Sherman,  33  N.Y.  69.)     An  answer  setting  up  payment  after 
suit  brought  is  good,  although  it  demand  that  the  complaint  be  dis- 
missed, and  judgment  granted  for  costs.     Under  the  Code,  no  formal 
conclusion  is  required,  and  no  judgment  or  relief  is  required  to  be 
prayed  for,  except  when  the  defendant  asks  affirmative  relief  against  the 
plaintiff.     (Bendit  v.  Annestey,  42  Barb.  192;  S.C.,  27  How.  Pr.  184.) 
For  another  form  of  plea,  see  Chitty's  Forms,  109. 

102.  Interest. — Alleging  that  the  defendant  paid  the  plaintiff  the 
several,  etc.,  pursuing  the  terms  of  the  complaint,  imports  payment  of 
interest  as  well  as  the  principal,  and  it  is  therefore  unnecessary  to  aver 
its  receipt  in  fulteatisfaction.     Chew  v.  Wooley,  7  Johns.  399. 

103.  Must  be  Specially  Pleaded. — Payment  or  part  payment 
(McKyring  v.  Bull,  16  N.Y.  297)  may  be  set  up  in  the  answer  as  new 
matter,  and  must  be  specially  pleaded.     (Glazier  v.  Clift,  10  Cal.  303; 
Piercy  v.  Sabin,  Id.  27;  Green  v.  Palmer,  15  Id.  417;  Coles  v.  Soulsby, 
21  Id.  47;    McDonald  v.  Davidson,  30  Id.  173;   Fort  v.  Gooding,  9 
Barb.  371;  Texier  v.  Guion,  5  Duer,  389;  Morrell  v.  Irving  Fi.  Ins. 
Co.,   33  N.Y.  429;   Field  v.  Mayor  of  N.Y.,  2  Seld.  189;   Texier  v. 
Guion,  5  Duer,  392;  Calkins  v.  Palmer,  21  Barb.  275;  Henderson  v. 
Henderson,  3  Den.  314;  Fellers  v.  Lee,  2  Barb.  489;  Morey  v.  Farmers' 
Loan  and  Trust  Co.,  18  Barb.  406;  Pattisonz*.  Taylor,  i  Code  R.  (N.S.} 
174;    Martin  v.  Gage,  5  Seld.  398;    N.Y.  Li.   Ins.  and  Trust  Co.  v. 
Covert,  29  Barb.  436;  Morrell  v.  Irving  Ins.  Co.,  33  N.Y.  429.)    And 
the  current  authorities  hold  that  neither  payment  nor  part  payment  can 
be  given  in  evidence  under  the  general  issue.     (N.Y.  Code,  274;  Id. 
284;    i  Van  Santv.  PI.  454;   Piercy  v.  Sabin,  10  Cal.  30;    Calkins  v. 
Parker,  21  Barb.  275;    Brazil  v.  Isham,  2  Keenan,  17;    McKyring  v. 
Bull,  1 6  N.Y.  297.)      Per  contra  where  it  was  held  that  it  is  not  new 
matter,  and  need  not  be  specially  pleaded,  see  Frisch  v.  Caler,  31  Cal. 
71;  Fairchild  v.  Amsbaugh,  22  Id.  575. 

104.  Nature  of  Plea. — In  Pennsylvania,  payment  with  leave  is 
a  general  issued  plea,  and  with  notice  of  special  matter,  admits  any- 
thing which  proves  fraud,  mistake,  want  or  failure  of  consideration, 
and  shows  that,  ex  equo  et  bono,  a  part  or  whole  of  the  amount  claimed 


732  FORMS    OF     SPECIAL    PLEAS. 

should  not  be  recovered.  (Uhler  v.  Sanderson,  38  Penn.  128.)  Such 
a  plea  admits  all  the  allegations  in  the  complaint  essential  to  support 
the  action.  (Archer  v.  Morehouse,  Hempst.  184.)  And  shows  the 
affirmative  of  the  issue  on  the  defendant.  Gebhart  v.  Frances,  32  Penn. 
78;  North  Penn.  R.R.  Co.  v.  Adams,  54  Penn.  94. 

105.  Payment,  how  Pleaded. — In  pleading  payment,  it  is  not 
necessary  that  the  answer  should  describe  the  particulars  of  the  trans- 
action relied  on  as  constituting  payment.    Under  the  averment  that  the 
demand  has  been  paid,  it  is  competent  to  prove  how  it  has  been  paid, 
whether  in  cash  or  otherwise.      (Farmers'  and  Citizens'  Bank  v.  Sher- 
man, 33  N. Y.  69;  Boyd  v.  Weeks,  2  Den.  322.)     So,  where  payment 
was  made  to  wife  of  plaintiff.      (Offley  v.  Clay,  2  Man.  &  G.  172;  2 
Scott  (N.R.)  372.)     So,  where  payment  was  made  by  check.     (Strong 
v.  Stevens,  4  Duer,  668;  Bradford  v.  Fox,  16  Abb.  Pr.  51;    Hoogland 
v.  Wright,  7  Bosw.  394.)     Or  by  negotiable  note.    (Geller  v.  Seixis,  4 
Abb.  Pr.  103.)     Held,  that  in  such  case  it  must  be  averred  that  such 
note  was. taken  in  payment.      (Homas  v.  McConnell,  3  McLean,  381.) 
So,  also,  a  surety  for  rent  may  set  up  payment  made  by  tenant  for  repairs 
agreed  to  be  done  by  the  landlord,  by  way  of  reduction  for  the  claim  of 
rent.      (Rosenbaum  v.  Gunter,  3  ED  Smith,  203.)      And,  under  the 
plea  of  payment,  a  surety  may  show  that  the  plaintiff  has  taken  a  draft 
of  the  principal  debtor,  payable  at  a  future  day  in  payment  of  the  debt. 
(Albany  Ins.  Co.  v.  Devendorf,  43  Barb.  444.)    It  would  be  bad  plead- 
ing to  allege  evidence  of  the  payment,  instead  of  averring  the  fact  itself. 
Farmers'  and  Citizens'  Bank  v.  Sherman,  33  N.Y.  69. 

106.  Payment  by  Remittance. — For  an  answer  by  a  defend- 
ant sued  as  factor  under  a  del  credere  commission,  showing  a  remittance 
by  instruction  of  his  principal,  see  Heubach  v.  Rother,  2  Duer,  227. 

107.  Payment  to  Sheriff. — Payment  to  the  sheriff  on  an  execu- 
tion against  the  creditor  must  be  specially  pleaded.    (Calkins  v.  Packer, 
21  Barb.  275.)     For  the  necessary  allegation  in  such  case,  see  (Handly 
v.  Green,  15  Id.  601.)     And  wherever  the  plaintiff  could  be  surprised 
by  a  general  allegation  of  payment,  it  will  be  better  to  plead  the  facts 
specially,  as  in  the  following  forms. 

108.  Presumption  of  Payment. — An  answer  alleging  payment 
is  the  proper  form  in  which  to  set  up  the  defense  of  a  presumption  of 
payment  arising  from  lapse  of  time,  under  2  Rev.  Stat.  301,  §  46.    Hen- 


FORMS    OF     SPECIAL    PLEAS.  733' 

derson  v.  Henderson,  3  Den.  314;    Pattison  v.  Taylor,  8   Barb.   250; 
N.Y.  Life  Ins.  Co.  v.  Covert,  29  Id.  435. 

109.  Receipt. — A  receipt  in  full,  given  by  the  plaintiff  .after  suit 
is  brought,  is  a  good  defense  by  way  of  plea.      Wade  v.  Emerson,  17 
Mo.  267;  Wade  v.  Goldsberry,  17  Mo.  270. 

110.  Time  of  Payment. — That  the  time  of  payment  has  been 
extended  must  be  specially  pleaded.      Allen  v.  Bruesing,  32  ///.  505; 
Newell  v.  Salmonds,  22  Barb.  647;    see,  also,  Goddard  v.  Fulton,  21 
Cal.  430. 

111.  Time  Alleged. — It  is  not  essential  to  designate  the  time, 
though  it  ought  to  appear  to  have  been  before  suit.     Bird  v.  Caritat,  2 
Johns.  342. 

No.  601. 

ii.     Payment   by    Note. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  on  the  ....  day  of ,  1 8 .  . ,  at , 

at  the  request  of  the  plaintiff,  he  made  his  promissory 

note  to  one  C.  D.  for dollars,  in  discharge  of 

the  indebtedness  stated  in  the  complaint. 


112.  Payment  by  Note. — Under  an  answer  averring  payment 
by  note,  evidence  of  payment  in  money  or  by  check  is  inadmissable. 
(Canfield  v.  Miller,  13  Gray  (Mass.)  274.)  This  rule  is  only  to  be 
applied  to  avoid  surprise  or  prejudice  to  the  defendant.  Farmers'  and 
Citizens'  Bank  v.  Sherman,  6  Bosw.  181. 


734  FORMS  OF  SPECIAL  PLEAS. 

No.  602. 

iii.     Payment  by  Bill  Accepted  in  Discharge,  which  Plaintiff  has  Lost. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  before  this  action  the  plaintiff  drew  his  bill 
on  the  defendant  for  the  amount  of  said  account  [or 
other  indebtedness  alleged],  dated  on  the  ....  day  of 

,  1 8 .  . ,  and    payable months   after 

said  date ;  which  the  defendant  then  accepted. 

II.  That  the  plaintiff  received  said  acceptance  on  ac- 
count of  said  indebtedness,  and  afterwards,  and  before 
the  same  became  due  and  payable,  lost  the  same,  and 
cannot  produce  it  to  the  defendant. 


113.  Acceptance  of  Negotiable  Paper. — The  acceptance  of 
a  negotiable  promise  of  payment  from  a  debtor  suspends  the  remedy 
upon   the  original  indebtedness,  but  acceptance  of  a  non-negotiable 
promise  does  not,  unless  it  is  founded  upon  a  new  consideration.    Gel- 
ler  v.  Seixas,  4  Abb.  Pr.  103;  Ranken  v.  Deforest,  18  Barb.  144. 

114.  Payment  by  Check. — An  answer  which  states  that  defend- 
and  gave  his  check,  for  the  sum  lent,  and  interest  to  the  time  it  was 
given,  and  that  the  plaintiffs  have  not  returned  it,  and  that  it  is  still 
outstanding,  is  insufficient,  unless  it  also  avers  that  plaintiffs  have  negoti- 
ated it  to  a  third  person,  who  holds  or  owns  it.     Strong  v.  Stevens  4 
Duer,  668;  compare  Geller  v.  Seixas,  4  Abb.  Pr.  103;  Crowe  v.  Clay, 
25  Eng.  L.  and  Eq.  451;  Thayerz;.  King,  15  Ohio,  242. 


FORMS    OF    SPECIAL   PLEAS.  735 

No.  603. 

iv.     Payment  in  Services. 
[TITLE.  J 

The  defendant  answers  to  the  complaint: 

I.  That  after  the  said  promissory  note  became  pay- 
able, and  before  this  action,  to  wit:  on  the  ....  day  of 

,  1 8 . . ,  the  plaintiff  agreed  to  receive  and  the 

defendant  agreed  to  render  to  the  said  plaintiff  his  ser- 
vices as  [teamster]  to  the  amount  of  said  note. 

II.  That  defendant  afterwards,  according  to  the  said 
agreement,  rendered  such  services  to  the  plaintiff,  to  the 
full  amount  due  and  payable  on  the  said  note. 

115.     Form. — This  form  is  sustained  by  Louden  v.  Birt,  4  Ind.  566. 

No.  604. 

Release. 

[TITLE.] 

The  defendant  answers  to  the  complaint: 

That     on     the    ....   day     of   ,    1 8 . . ,   at 

,  the  plaintiff,  by  deed,  released  the  defendant 

from  the  claim  set  up  in  the  complaint. 


116.  •Covenant  as  a  Release. — To  avoid  circuity  of  action,  a 
covenant  may  be  pleaded  as  a  release,  but  it  must  be  a  covenant  to  the 
original  obligation,  and  must  contain  words  that  will  give  the  cove- 
nanter a  right  of  action,  which  will  precisely  countervail  that  to  which 
he  is  liable.    Garnett  v.  Macon,  2  Brock.  Marsh.  185;  S.C.,  6  Call,  308. 

117.  Effect   of  Release. — A  release  by  one  of  several   joint 
plaintiffs  is  a  bar  to  the  action.      (Austin  v.  Hall,  13  Johns.  286;  and 


73  ->  FORMS    OF    SPECIAL    PLEAS. 

see  Mott  v.  Burnett,  2  E,  D.  Smith,  50.)  A  sealed  release  to  one  of 
several  joint  obligors  inures  to  the  benefit  of  all.  (Rowley  v.  Stoddard, 
7  Johns.  207.)  Otherwise  of  a  covenant  not  to  sue.  Harrison  v, 
Close,  2  Id.  448. 

118.  Equitable    Discharge.  —  An   equitable   discharge   from 
judgment  does  not  support  a  plea  of  payment,  but  should  be  specially 
pleaded  as  a  release,  and  a  defendant,  being  surety,  having  thus  incor- 
rectly pleaded,  was  allowed  to  amend,  on  the  condition  that  he  should 
recover  no  costs  of  action.     Shelton  v.  Kurd,  7  Rhode  Isl.  403. 

119.  Form  of  Release. — A  release  under  seal  of  one  of  several 
joint  or  joint  and  several  debtors  or  obligors,  is  a  release    to  all. 
(Armstrong  v.  Hayward,   6  Cal.    185;    Rowley  v.  Stoddard,  7  Johns. 
210;  Cheatham  v.  Ward,  i  Bos.  &  Pul.  633;  Nicholson  v.  Revill,  i 
Ad.   &•  El.  683;  American  Bk.  v.  Doolittle,   14  Pick.  126;  Tucker- 
man  v.  Newhall,  17  Mass.  583;  Goodenow  v.  Smith,  18  Pick.  415.) 
And  that  a  release  extinguishes  the  obligation,  McCrea  v.  Piermont, 
1 6  Wend.  474;  cited  in  Prince  v.  Lynch,   Cal.  Sup.  Ct.,  Jul.  T.,  1869. 

120.  Release.— If  any  matter  of  defense  has  arisen  after  an  issue 
in  fact,  it  may  be  pleaded  by  the  defendants;  as  that  the  plaintiff  has 
given  him  a  release,  or  in  an  action  by  an  administrator,  that  the  plaintiffs 
letters  of  administration  have  been  revoked.     (Yeaton  v.  Lynn,  5  Pet. 
223.)    A  release  by  the  plaintiff  must  be  specially  pleaded,      (i  Van 
Santv.  403;  Turners.  Caruthers,  17  Cal.  431;  Coles  v.  Soulsby,  21  Id. 
50.)     But  a  lost, release  cannot  be  pleaded.      Warder  v.  Evans,    2 
Mo.  205. 

121.  Release    after    Issue   Joined. — A  release  given    after 
issue  is  joined  in  an  action   can  properly  only  be  the  subject  of  a 
supplemental  answer,  and  not  of  an  amendment  to  that  originally  put 
in.     Matthews  v.  Chicopee  Manuf.  Co.,  3  Robertson,  711. 

122.  Release  Implied. — The  law  implies  the  release  and  dis- 
charge of  a  right  of  action,  where  the  creditor  voluntarily  delivers  to 
his  debtor  the  bond,  note  or  other  evidence  of  his  claim.     Path.  Obi. 
n.  608,  609;  Bouv.  Law  Die.,  Title  Release ;  3  Barr.  251;    29  Penn. 
Rep.  50;  Beach  v.  Endress,  51  Barb.  570. 

123.  Release  of  Property. — Release  of  property  from  levy  on 
execution  discharges  third  parties  who  are    liable  collaterally,  or  as 
sureties  therefor.     Mulford  v.  Estudillo,  23  Cal.  94. 


FORMS     OF    SPECIAL    PLEAS.  737 

No.  605. 

i.     Statute  of  Frauds. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  no  note  or  memorandum  in  writing,  express- 
ing the  consideration,  was  ever  made  of  any  such  con- 
tract, as  is  alleged  in  the  complaint,  or  of  any  contract 
whatever  [or  state  other  facts  as  they  exist\. 

II.  That  he  did  not  receive  any  part  of  the  goods, 
wares  or  merchandise  mentioned  in  the  complaint.. 

III.  That  he  did  not  pay  any  part  of  the  purchase- 
money. 


124.  Essential  Averments. — A  plea  of  the  Statute  of  Frauds 
should  expressly  aver  that  the  contract  concerning  the  lands  sought  to 
be  enforced  was  not  in  writing.     (Bean  v.  Valle,  2  Mo.  126.)     In  an 
action  on  a  contract  not  in  writing,  but  which  to  be  binding  on  defend- 
ant should  be  in  writing,  under  general  denial  the  existence  of  the  con- 
tract is  in  issue.     (Livingston  v.  Smith,  14  How.  Pr.  492;  Amburger 
v.  Marvin,  4  E.  D.  Smith,  393;  Champlin  v.  Parish,  n   Paige,  408; 
Haight  v.  Child,  34  Barb.  191.)     Or  defendant  may  deny  that  contract 
is  in  writing  or  that  it  is  subscribed.     Id.;  Cozine  v.  Graham,  2  Paige, 
181;   Ontario  Bank  v.  Root,  3  Id.  478;  Harris  v.  Knickerbocker,  5 
Wend.  638. 

125.  How  Pleaded. — The  rule  under  the  former  practice,  that 
when  the  terms  of  a  contract  are  in  dispute,  and  the  answer  does  not 
deny  the  contract,  the  terms  of  it  cannot  be  proved  by  parol,  is  altered 
by  the  Code  (N.Y.),  and  now  an  answer  is  sufficient  which  admits  the 
making  of  a  contract  and  sets  out  its  terms,  although  it  omits  to  set  up 
the  Statute  of  Frauds  as  a  bar.     (Haight  v.  Child,  34  Barb.  186.) 
The  title  being  no  part  of  an  act,  it  need  not  be  recited.     Eckert  v. 
Head,  i  Mo.  593. 

126.  Lease. — That  neither  the  defendant,  nor  any  person  by  him 

47 


738  FORMS    OF    SPECIAL    PLEAS. 

lawfully  authorized,  did  ever  make  or  sign  any  contract  or  agreement 
in  writing,  for  making  or  executing  any  lease  to  the  said  plaintiff,  of  the 
same  premises,  or  any  of  them,  or  of  any  part  thereof,  or  to  any  such 
effect  as  is  alleged;  or  any  memorandum  or  note  in  writing  of  any 
agreement  whatsoever,  for  or  cpncerning  the  demising  or  leasing,  or 
making  or  executing  any  lease  of  the  said  premises,  or  any  of  them, 
or  any  part  thereof,  to  the  plaintiff.  Eq.  Draftsman,  654. 

127.  Must  be  Specially  Pleaded. — A  plaintiff's  recover)-  can- 
not be  barred  by  the  Statute  of  Frauds,  unless  the  statute  be  pleaded. 
(Osborne  v.  Endicott,  6  Cal.  149;   Maynard  v.  Johnson,  2  Nev.  16.) 
Where  contract  is  void  ab  initio,  a  general  plea  of  non  est  faclum  is 
proper.     Where  it  is  merely  voidable,  a  special  plea  setting  forth  the 
special  circumstances  is  necessary.     2  S/ra.  1,104;  Bull.N.P.  172;  16 
Mass.  348;  14  Pick.  303;  Bottomley  v.  United  States,  i   Story  C.  Ct. 
135;  Marine  Ins.  Co.  v.  Hodgson,  6  Cranch   U.S.  206;  Greathouse  v. 
Dunlap,  3  McLean  U.S.  303. 

128.  Note. — There  are  other  agreements  which  by  our  Statute 
must  be  in  writing,  to  wit,  for  the  sale  of  lands,  etc.,  references  to 
which  appear  under  their  appropriate  headings. 

129.  Real  Actions. — The  provisions  of  the  sixth  section,  chap, 
i.,  of  the  Statute  of  Frauds,  relate  exclusively  to  contracts  in  relation  to 
real  estate.     Sandfoss  v.  Jones,  35  Cal.  481. 

130.  Statute  of  Frauds. — In  the  following  cases  every  agree- 
ment shall  be  void,  unless  such  agreement,  or  some  note  or  memoran- 
dum thereof,  expressing  the  consideration,  be  in  writing,  and  subscribed 
by  the  party  charged  therewith:    First,  Every  agreement  that  by  the 
terms  is  not  to  be  performed  within  one  year  from  the  making  thereof. 
Second,  Every  special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another.     Third,  Every  agreement,  promise,  or  undertaking, 
made   upon    consideration  of  marriage,  except  mutual    promises  to 
marry.     Gen.  Laws  of  Cal.  §  3,156. 


FORMS    OF    SPECIAL    PLEAS.  739 

No.  606. 

ii.    Statute  of  Frauds — Another  Form, 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  plaintiff"  ought  not  to  have  his  said  action;  be- 
cause neither  defendant,  nor  any  person  by  him  legally 
authorized,  did  ever  make  or  sign  any  contract  or  agree- 
ment in  writing,  binding  this  defendant  to  make  any 
such  conveyance  of  the  said  premises  to  the  plaintiff  as 
he  has  in  said  complaint  demanded. 

131.    Agreement  not  to  be  Performed  -within  a  Year. — 

That  although  the  said  agreement  by  its  terms  was  not  to  be  performed 
within  one  year  from  the  making  thereof,  neither  said  agreement  nor 
any  note  or  memorandum  thereof  was  or  is  in  writing  and  subscribed 

by  the  said ,  who  is  sought  to  be  charged  therewith,  or  by 

his  lawful  agent,  or  by  any  other  person. 

No.  607. 

\\i.    Statute  of  Frauds — Another  Form, 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  Etc. 

II.  Defendant,  for  a  further  defense,  alleges  that  the 
promise  set  forth  in  the  complaint  was  a  special  promise 
to  answer  for  the  debt,  default,  or  miscarriage  of  A.  B. 
[or  as  the  case  may  be],  in  the  complaint  named. 

III.  That  no  note  or  memorandum  of  said  promise 
or  agreement  was  made  in  writing,  and  signed  by  de- 
fendant or  any  other  person  by  his  authority,  or  at  all. 


74-O  FORMS    OF    SPECIAL   PLEAS. 

No.  608. 

iv.    Statute  of  Frauds — Agreement  in  Consideration  of  Marriag  e. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

That  the  said  alleged  agreement  was  made  upon  con- 
sideration of  marriage,  and  that  neither  said  agreement 
nor  any  note  or  memorandum  thereof  was  ever  in  writ- 
ing, and  subscribed  by  said ,  who  is  sought  to 

be  charged  therewith,  or  by  his  lawful  agent,  or  at  all. 

No.  609. 

•  Statute  of  Frauds — Lltra  Vires  Corporation. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  the  plaintiff  was  not  and  is  not  authorized  by 
law  to  take,  hold,  and  convey  real  property,  except  for 
the  following  purposes,  and  in  the  following  manner 
\Jiere  set  forth  the  power  of  the  corporation]. 

II.  That  the  deed  alleged  in  the  complaint  was  exe- 
cuted and  accepted  on  the  part  of  said  corporation,  for 
the  purpose  of  \jiere  state  purpose  not  within  the  power\. 


131.  Corporation. — Assuming  that  the  corporation  under  such 
circumstances  was  authorized  to  take  and  transfer  real  estate  by 
deed,  it  rests  with  the  defendant  to  show  by  allegation  and  proof  that 
the  plaintiff  did  not  take  or  transfer  the  title  to  the  premises  in  question 
for  any  purpose,  and  in  the  form  authorized  by  law.  Farmers'  Loan 
and  Trust  Co.  v.  Curtis,  7  N.F.  466. 


FORMS    OF    SPECIAL    PLEAS.  741 

No.  610. 

Statute   of  Limitations. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  cause  of  action  set  forth  therein  did  not 
accrue  within  ....  years  before  the  commencement  of 
this  action. 


132.  Application  of  Statute. — In  California,  the  Statute  of  Lim- 
itations applies  equally  to  actions  at  law  and  to  suits  in  equity.     It  is 
directed  to  the  subject  matter,  and  not  to  the  form  of  the  action,  or  to 
the  forum  in  which  the  action  is  prosecuted.     Nor  is  there  any  distinc- 
tion in  the   limitation   prescribed  between  simple  contracts  in  writing 
and  specialties.     Lord  v.  Morris,  18  Cal.  482;  Boyd  v.  Blankman,  29 
Cal.  20. 

133.  Construction  of  Answer. — An  answer  stating  that  the 
cause -of  action  has  not  accrued  within  five  years  is  sufficient  for  five 
years,  and  for  any  period  of  limitation  named  in  the  Statute  less  than 
five  years.     (Boyd  v.  Blankman,  29  Cal.  20.)     The  words  "  preceding 
the  commencement  of  this  action,"  in  such  answer,  are  equivalent  to 
the  words  preceding  the  filing  of  this  complaint.     Adams  v.  Patterson,  35 
Cal.  122. 

134.  Construction   of  Statute. — Statutes  of  limitation  do  not 
act  retrospectively;  they  do  not  begin  lo  run  until  they  are  passed,  and 
consequently  cannot  be  pleaded  until  the  period  fixed  by  them  has  fully 
run  since  their  passage.     (Nelson  v.  Nelson,  6  Cal.  430.)     The  Statute 
runs  not  from  the  time  of  the  promise,  but  from  the  time  of  the  breach. 
(Stilwellz*.  Hasbrouck,  i  Hill,  561;  United  States  v.  White,  2  Id.  59; 
Tracy  v.  Rathbun,  3  Barb.  543.)     The  mere  statement  in  the  com- 
plaint that  the  claim  was  due  at  a  certain  time  does  not  conclude  the 
plaintiff  under  the  Statute  of  Limitations,  if  it  appears  from  the  facts 
stated  that  the  right  of  action  did  not  accrue  till  a  later  date.     Walden 
v.  Craft,  2  Abb.  Pr.  301. 


742  FORMS  OF  SPECIAL  PLEAS. 

135.  Defense  under  the  Statute. — It  is  not  necessary  that 
the  defense  of  the  Statute  of  Limitations  should  be  accompanied  by  a 
denial  of  the  allegations  of  the  complaint  intended  to  avoid  or  head  off 
that  defense,  to  prevent  the  Court  taking  them  as  true.     Sands  v.  St. 
John,  36  Barb.  628. 

136.  Delivery. — Delivery,  to  take  the  case  out  of  the  Statute, 
must  be   actual,  and  not  merely  constructive.     (Bissell  v.  Balcom,  40 
Barb.   98;    Good  v.  Curtiss,  31  How.  Pr.  4.)     Nor  will  possession  of 
bill  of  lading  by  the  purchaser,  fraudulently  obtained,  suffice   for  that 
purpose.     (Brand  v.  Fecht,   30  How.   Pr.   313.)     See,  as  to  whether 
delivery  is  or  is  not  actually  made,  under  doubtful  circumstances,  being 
a  question  of  fact,  (Wylie  v.  Kelly,  41  Barb.  594.)     But  delivery  at 
any  time  whilst  the  contract  remains  unrevoked  will  be  sufficient  to 
take  the  case  out  of  the  Statute.     (Good  v.  Curtiss,  31  How.  Pr.  4; 
Swift  v.  Opdyke,  43  Barb.  274.)     See,  as  to  the  effect  of  a  partial 
delivery  of  goods,  comprised  within  two  separate  contracts,  Swift  v. 
Opdyke,  43  Barb.  274. 

137.  Effect  of  Statute. — The  Statute  of  Limitations  does  not 
have  the  effect  to  extinguish  a  debt,  nor  raise  a  presumption  of  its  pay- 
ment; it  only  bars  the  remedy,  and  thus  becomes  a  statute  of  repose. 
(McCormick  v.  Brown,  36  CaL  180.)     The  rule  held  in  this  case,  as  to 
what  constitutes  a  sufficient  acknowledgment  of  a  debt,  to  take  it  out 
of  the  Statute,  affirmed  in  Farrell  v.  Palmer,  Id.  187. 

138.  Exceptions  under  the  Statute. — The  defendant  is  not 
bound  to  negative  the  exceptions  from  the  general  rule  that  the  statute 
establishes.     It  lies  upon  the  plaintiff  to  aver  and  prove  the  facts  that 
create  the  exception.     (Ford  v.  Babcock,  2  Sandf.   518;  Huntington 
v.  Brinckerhoff,  10  Wend.  278.)     And  if  so  averred,  a  pure  plea  of  the 
Statute  is  no  bar,  unless  accompanied  with  an  answer  destroying  the 
force  of  those  circumstances,  by  issuable  averments.    {Beanies'  PI.  1 69 ; 
Kane  v.  Bloodgood,  7  Johns.    Ch.  90;  Goodrich  v.  Pendleton,  3  Id. 
384;  Story's  Eq.  PI.  672,  §  754.)     But  it  has  been  held,   also,  that 
such  allegations  are  immaterial,  and  need  not  be  answered.     Sands  v. 
St.  Johns,  36  Barb.  628;  S.C.,  23  How.  Pr.  140. 

139.  Form  of  Answer. — For  form  of  answer,  see  (Angell  on 
Limitations,  §§  287,  309,  and  case  there  cited;  see,  also,  Soulden  v. 
Van  Rensselaer,  3  Wend.  472;  Fisher  v.  Pond,   2  Hill,  338;  Bell  v. 


FORMS     OF    SPECIAL    PLEAS.  743 

Yates,  33  Barb.  627.)  A  defendant  relying  on  the  Statute  of  Limita- 
tions should  not  allege  matter  of  law,  but  the  facts  which  bring  him 
within  the  Statute.  Boyd  v.  Blankman,  29  Cal.  20. 

140.  How  Pleaded. — To  rely  upon  the  presumption  of  pay- 
ment from  lapse  of  time,  the  defendant  should  plead,  not  the  Statute, 
but  payment,  and  if  he  cannot  swear  to  this,  his  affidavit  may  state  the 
facts  which  raise  the  presumption  of  payment.     (Giles  v.  Baremore,  5 
Johns.  Ch.  545.)     The  Statute  should  not  be  pleaded  as  a  bar  to  the 
whole  demand,  if  it  is  a  good  defense  to  a  part  only.     Wood  v.  Riker, 
i  Paige,  6 1 6. 

141.  Insufficient  Allegations. — An  allegation  of  lapse  of  time 
held  not  to  amount  to  a  plea  of  the  Statute  of  Limitation,  in  a  case 
where  leave  to  plead  the  Statute  had  been  refused.     (People  ex  rel.  Bar- 
ton v.  Rensselaer  Ins.  Co.,  38  Barb.  323.)     The  general  allegation  in 
answer,  that  the  action  is  barred  by  the  Statute  prescribing  two  or  any 
other  number  of  years  as  the  limitation  for  bringing  the  action,  is  not 
the  correct  method  of  pleading  the  Statute  of  Limitations.     (Schroeder 
v.  Johns,  27  Cal.  278;  see,  also,  McKay  v.  Petaluma  Lodge,  Cal.  Sup. 
Ct.,  Apl.  '1 ''.,  1866.)     Where  the  Statute  of  Limitations  imposes  a  bar 
upon  certain  species  of  contracts  after  three  years,  and  upon  others 
after  two  years,  and  the  plea  did  not  show  that  the  contract  in  question 
was  of  the  latter  class,  the  plea  was  bad.     Lyon  v.  Bertram,  20  How- 
ard U.S.  150. 

142.  Judgment. — An  action  on  a  new  promise  to  pay  a  judg- 
ment, so  as  to  avoid  the  bar  of  the  Statute,  must  be  brought  within  four 
years  from  the  making  of  the  new  promise.     McCormick  v.  Brown, 
$6  Cal.  1 80. 

143.  Married  Woman. — In  this  State  (California),  prior  to  1863,. 
if  a  married  woman  was  entitled  to  maintain  an  action  on  a  promissory 
note,  the  Statute  did  not  run  as  against  her  right  of  action  during  her 
right  of  coverture.     Since   1863,  the  Statute  runs  against  a  married 
woman  in  all  those  actions  to  which  her  husband  is  not  a  necessary 
party  plaintiff  with  her.     Wilson  v.  Wilson,  36  Cal.  447. 

144.  Must  be  Specially  Pleaded. — The  Statute  of  Limita- 
tions must  be   specially  pleaded.     (Steamer  "  Senorita  "  v.  Simonds, 
i  Or.  274;  Lyon  v.  Bertram,  20  How.    U.S.  149;  Bihin  v.  Bihin,    17 
Abb.  Pr.  19;  Fogal  v.  Pirro,  10  Bosw.  100;  17    Abb.  Pr.*ii$;  Sands 


744  FORMS     OF    SPECIAL    PLEAS. 

v.  St.  John,  36  Barb.  628.)  If  the  demand  be  in  truth  barred,  but 
the  fact  does  not  appear  upon  the  face  of  the  complaint,  the  defense 
must  be  made  in  the  answer.  (Smith  v.  Richmond,  19  Cal.  476.)  In 
New  York,  it  seems  it  can  only  be  taken  by  answer,  and  not  by  demur- 
rer. (N.Y.  Code,  §  74;  Lefferts  v.  Hollister,  10  Hoiu.  Pr.  383;  16 
Id,  546;  and  see  Butler  v.  Mason,  5  Abb.  Pr.  40;  Sands  v.  St.  John, 
36  Barb.  628.)  And  is  not  favored  unless  in  aid  of  justice.  (Cooke 
v.  Spears,  2  Cal.  409.)  It  must  be  directly  pleaded;  inferential  allega- 
tions will  not  avail.  People  v.  Rensselaer  Ins.  Co.,  38  Barb.  323. 

146.  Parol  Agreements. — As  to  parol  agreement  to  assume 
mortgage  as  part  of  purchase-money,  valid  and  enforceable,  (Ely  v. 
McNight,  30  How.  Pr.  97.)     On  the  subject  of  the  plea  of  the  statute 
limitation,  consult  the  following  recent  New  York  decisions:  To  extend 
time  for  payment  of  mortgage,  for  valuable  consideration.     (Dodge  v . 
Crandall,  30  N.Y.  294.)     Parol  guaranty  was  valid,   when  given  for 
consideration  moving  to   the   guarantor.     (Dauber  v.   Blackney,   38 
Barb.  432.)     Agreement  to  be  answerable  for  work  done  for,  or  goods 
supplied  to  another,  collateral,  and  within  the  Statute.    (Knox  v.  Nutt, 
I  Daly,  213;  Brown  v.  Weber,  24  How.  Pr.  306.)     But  where  prom- 
isor has  himself  assumed  the  benefit  of  work  previously  done  for 
another,  his  agreement  to  pay  for  it  will  be  held  direct,  and  not  col- 
lateral.    (Benedict  v.  Dunning,  i  Daly,  241;  Huber  v.  Ely,  45  Barb. 
169.)     So,  also,  as  to  promise  of  vendee  to  pay  debt  due  to  creditor  of 
vendor,  assumed  by  him  as  a  part  of  consideration  for  sale.     (Winfield 
v.  Potter,  10  Bosw.  226.)   See,  generally,  as  to  nullity  of  a  parol  exec- 
utory   agreement,   in  the  absence  of   any  writing  or  part  payment, 
Hagar  v.  King,  38  Barb.  200. 

147.  Part  Payment. — Part  payment,  to  take  the  case  out  of  the 
Statute,  must  be  made  at  the  time;  if  made  afterwards,  it  will  not  avail. 
(Bissell  v.  Balcom,  40  Barb.  98.)     And  giving  note  of  purchaser,  not 
payment  for  that  purpose.     (Wylie  v.  Kelly,  41  Barb.  594;  Ireland  v. 
Johnson,  20  How.  Pr.  463;  18  Abb.  Pr.  392.)     Nor  will  a  counter- 
credit,  agreed  to  be  given,  but  not  actually  made  at  the  time,   have  the 
effect  of  a  payment.     Feed  v.  Feed,  44  Barb.  96;  Wylie  v.  Kelly,  41 
Barb.  594. 

148.  Personal  Privilege. — See,  as  to  absolute  right  to  interpose 
this  defense,   where  existent,  (Sheldon  v.  Adams,   41    Barb.  54;    27 
Hmv.  Pr.^ijq;  18  Abb.  Pr.  405;  Harriott  v.  Wells,  .9  Bosw.  631.) 


FORMS  OF  SPECIAL  PLEAS.  745 

Pleading  the  Statute  of  Limitations  is  a  personal  privilege,  which  the 
defendant  may  assert  or  waive  at  his  option,  but  must  be  set  up  in  some 
form,  either  by  demurrer  or  answer,  and  if  not  so  set  up  is  deemed 
waived.  (Grattan  v.  Wiggins,  23  Cal.  16.)  The  Statute  of  Limita- 
tions may  be  allowed  to  be  pleaded  at  any  time  when  in  furtherance  of 
justice.  (Cooke  v.  Spears,  2  Cal.  409.)  So,  in  case  of  the  allowance 
of  a  several  plea  after  a  joint  plea  filed.  (Robinson  v.  Smith,  14  Id. 
254.)  Or  the  Court  may  refuse  permission  to  set  up  the  Statute  after 
pleading  to  the  merits.  (Stuart  v.  Landers,  16  Id.  372.)  If  the  Statute 
of  Limitations  is  pleaded,  and  the  plea  is  overruled,  it  cannot  be  put  in 
again  by  the  same  parties  or  their  privies.  (Fisher  v.  Rutherford,  Bald. 
1 88.)  How  pleaded,  see  Bank  of  California  v .  Ott,  2  Cranch  C.  Ci.  575; 
Union  Bank  of  Georgetown  v.  Eliason,  Id.  667. 

149.  Statutes  of  Different  States — Rule. — Where  the  cause 
of  action  accrued  in  one  State,  and  suit  was  brought  upon  it  in  another 
State,  a  plea  of  the  Statute  of  Limitations  of  the  former  State  was  not  a 
good  plea;  but  the  same  was  demurrable,  and  the  Court  sustained  the 
demurrer.  (Townsend  v.  Jennison,  9  How.  U.S.  467.)  The  rule  is 
that  the  Statute  of  Limitations  of  the  country  in  which  the  suit  is  brought 
may  be  pleaded  to  bar  a  recovery  upon  a  contract  made  out -of  its  po- 
litical jurisdiction,  and  that  the  rule  of  lex  loci  conlractus  cannot  prevail. 
(Id.)  But  see  the  following  statute:  When  a  cause  of  action  has  arisen 
in  another  State,  or  in  a  foreign  country,  and  by  the  laws  thereof  an 
action  thereon  cannot  there  be  maintained  against  a  person  by  reason 
of  the  lapse  of  time,  an  action  thereon  shall  not  be  maintained  against 
him  in  this  State,  except  in  favor  of  a  citizen  thereof,  who  has  held  the 
cause  of  action  from  the  time  it  accrued.  (Cal.  Pr.  Act,  §  532.)  It  is 
a  universally  accepted  rule  that  statutes  of  limitations  are  to  be  strictly 
construed.  (Tyman  v.  Walker,  35  Cal.  634.)  General  words  in  the 
Statute  must  receive  general  construction,  and  if  there  be  no  express 
exception  the  Court  can  make  none.  Tyman  v.  Walker,  35  Cal.  634. 


74-5  FORMS     OF    SPECIAL    PLEAS. 

JVo.    611. 

Tender. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That    on    the    ....   day   of   ,    1 8 .  . ,   at 

,  before  the  commencement  of  this  action,  he 

tendered  to  the  plaintiff dollars  [in  gold  and 

silver  coin  of  the  United  States],  in  payment  of  the 
[contract,  note,  or  indebtedness]  in  the  complaint .  set 
forth. 

II.  That  the  defendant  has  always  been  and  still  is 
ready  and  willing  to  pay  the  same  to  the  plaintiff,  and 
now  pays  the  same  into  this  court  [or  slate  the  fact s\. 


149.  Affirmative  Pleas. — Payment,  tender,  and  readiness  to  pay 
are  affirmative  pleas,  and  cast  the  burden  of  proof  on  the  defendant. 
(North    Pennsylvania    Railroad    v.    Adams,    54    Penn.    94.)       And 
the   plea   of    tender   must   be   specially   stated;    (Bryan   v.   Maume, 
28  Cal.  238;)  with  great  particularity  as  to  time  and  place.     (Duff  v. 
Fisher,  15  Cal.  375.)     And  that  the  defendant  has  always  been  and 
still  is  ready  to  pay  the  sum  tendered,  and  the  money  must  be  brought 
into  court.     (Bryan  v.  Maume,  28  Cal.  238.)      And  it  is  essential  in 
setting  up  a  tender  to  aver  that  the  money  has  been  actually  brought 
into  court.    (Hill  v.  Place,  5  Abb.  Pr.  (N.S.)  18.)    As  to  this  defense 
generally,  see  Wilder  v.  Seelye,  8  Barb.  408 ;  People  v.  Banker,  8  How. 
Pr.  258;  Livingston  v.  Harrison,  2  E.  D.  Smith,  197. 

150.  Effect  of  Plea. — Where  the  defendant  pleads  tender  before 
suit,  and  pays  the  amount  of  his  tender  into  court,  and  the  plaintiff 
fails  to  show  himself  entitled  to  a  larger  sum,  it  is  proper  to  render 
judgment  for  the  defendant,  but  the  sum  paid  into  court  belongs  to 
plaintiff.      (Curiac  v.  Abadie,  25  Cal.  502;  Logue  v.  Gillick,  i  E.  D. 
Smith's  C.  P.  R.  398.)      In  such  case  the  plaintiff  shall  not  recover 
costs,  but  shall  pay  the  costs  of  suit  to  the  defendant.      Cal.  Pr.  Act, 
§  506.)     A  tender  does  not  extinguish  or  satisfy  the  obligation,  and  an 


FORMS     OF    SPECIAL    PLEAS.  747 

offer  to  comply  with  the  demand  of  a  judgment  does  not  amount  to  a 
satisfaction  thereof.     Reddington  v.  Chase,  34  Cal.  666. 

151.  How   Made. — Actual  production   and  offer    of  money  to 
creditor,  prerequisites   to  a  valid  tender,  (Strong  v.  Blake,  46  Barb. 
227.)     And  it  must  be  unconditional;  if  receipt  or  satisfaction  piece 
be  asked  for,  it  vitiates  it.    Rosevelt  v.  Bull's  Head  Bank,  45  Barb.  576. 

152.  Issue  Joined. — Where  the  plaintiff  joins  issue  on  such  a 
plea,  without  questioning  its  sufficiency,  he  cannot  afterwards  object 
that  it  was  not  duly  filed,  or  that  the  money  was  not  paid  into  court  at 
the  first  term.     (Rudolph  v.  Wagner,  36  Ala.  698.)     If^  by  the  laws  of 
the  United  States,  there  is  more  than  one  kind  of  lawful  money,  a  legal 
tender  in  payment  of  debts,  and  the  plaintiff  in  an  action  is  entitled  to 
a  judgment  payable  in  a  particular  kind  of  money,  a  plea  of  tender 
which  avers  the  tender  to  have  been  made  in  lawful  money  of  the  United 
States,  is  insufficient.    The  plea  should  aver  that  the  tender  was  made  in 
the  kind  of  money  the  plaintiff  is  entitled  to  receive.     (Magraw  v.  Mc- 
Glynn,  26  Cal.  428.)     The  Legal  Tender  Act  is  held  constitutional. 
(Lick  v.  Faulkner,  25  0/404;  Currier  v.  Abadie,  Id.  502;  Kierski  v. 
Matthews,  Id.  591;   People  v.  Mayhew,  26  Id.  655;    Higgins  v.  B.  R- 
and  A.W.  and  M.  Co.,  27  Id.  152;  Reese  v.  Stearns,  29  Id.  273;  Poett 
v.  Stearns,  31  Id.  78;  cited  in  Belioc  v.  Davis,  Cal.  Sup.  Ct,  Jul.  T., 
1869.)     It  is  competent  for  the  State  Legislature  to  enact  that  all  tolls, 
dockage,  and  wharfage  charges  payable  into  the  public  treasury,  shall 
be  due  and  collectable  exclusively  in  gold  and  silver  money  of  the 
United  States.     People  v.  Steamer  "America,"  34  Cal.  576. 

153.  Legal  Tender. — The  legal  tender  law  is  constitutional  as  to 
debts  contracted  before  its  passage.      Wilson  v.  Triblecock,  23  Iowa, 
130;  contra,  Riley  v.  Sharp,  i  Bush.  348;  see  Hallz^.  Hiles,  2  Bush,  532. 

No.  612. 

ii.     Payment  as  to  Part,  and  Tender  as  to  Residue. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  \_Allege  payment  of  part '.] 

II.  That   on    the  ....  day   of   ,   18.  .,   at 


748  FORMS    OF    SPECIAL   PLEAS. 

,  he  tendered  to  the  plaintiff  the  residue  of 

said  claim,  to  wit:  the  amount  of dollars,  etc. 

[as  in  preceding  form^\ 

No.  613. 

iii.       Denial  as  to  Part,  and  Tender  as  to  Residue. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 
I.    That  he  agreed  to  pay  to  the  plaintiff 


dollars  only  [or  that  the  goods,  or  services,  mentioned 

therein  were  reasonably  worth  no  more  than 

dollars]. 

II.    That    before    this    action,    on    the   ....  day   of 

,   1 8 . . ,    at   ,  he    tendered    to    the 

plaintiff,  in  gold  and  silver  coin  of  the  United  States, 

dollars,  in  payment  of  said  sum.    [  Continue  as 

in  preceding form^\ 

No.  614. 

i.    Want  of  Capacity — Alien  Enemy. 
[TITLE.] 

The  plaintiff  answers  to  the  complaint: 

I.  That  the  plaintiff  was  not,  at  the  commencement 
of  this  action,  and  is  not  now  a  citizen  of  the   United 

States,  but  was  and  is  an  alien,  born  in ,  out 

of  the  allegiance  of  the  United  States,  and  within  the 
kingdom  of 

II.  That  at  the  commencement  of  this  action  the 

government   of  said was,  and  still  is  at  war 

with,  and  is  an  enemy  of  the  United  States. 


FORMS     OF    SPECIAL   PLEAS.  749 

III.    That  the  plaintiff  then  was  and  still  is  an  alien 
enemy,   abiding   without   the    United   States,    and   at 

,  within  said ,  and  adhering  to  the 

said  enemies  of  the  United  States. 


154.  Form. — This  form  is  sustained  by  (Bell  v.  Chapman,   10 
Johns.  183.)    The  disability  only  continues  during  the  war.    Hamersley 
v.  Lambert,  2  Johns.  Ch.  508. 

155.  Residence. — Residence  within  the  United  States  presump- 
tively defeats  the  plea.     Clarke  v.  Morey,  10  Johns.  69. 

156.  Timek — Where  an  alien  commences  action  in  time  of  peace, 
it  is  competent  on  a  declaration  of  war  with  the  country  of  his  domicile 
to  interpose  this  plea.     Society  for  the  Propagation  of  the  Gospel  v. 
Wheeler,  2  Gall.  U.S.  105. 


No.  615. 

ii.     Want  of  Capacity — Assignment. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  before  the  commencement  of  this  action,  and  on 

or  about  the  ....  day  of ,  1 8 . . ,  at , 

the  plaintiff  duly  assigned  the  subject  matter  and  cause 
of  action  set  forth  in  the  complaint  to  one  R.  S.,  who 
then  was  and  has  been  ever  since  the  holder  thereof. 


157.  Assignee. — An.  answer  setting  up  that  another  party  than 
the  plaintiff  is  the  real  party  in  interest,  should  allege  facts  which  would 
show  as  a  matter  of  law  that  another  person  should  have  brought  the 
suit.     Raymond  v.  Pritchard,  24  Ind.  318. 

158.  Assignee   of  Plaintiff's  Interest. — It  is  optional  with 
Court,  on  death  of  plaintiff,  to  allow  assignee  of  plaintiff's  interest  to  be 


75O  FORMS  OF  SPECIAL  PLEAS. 

substituted,  and  the  action  to  continue  in  his  name.  (Barstow  v. 
Newman,  34  Cal.  90;  Sheldon  v.  Havens,  7  How.  Pr.  258; 
Harris  v.  Bennett,  i  Code  R.  (N.S.)  203;  Murray  v.  Gen.  Mut. 
Ins.  Co.,  2  Duer,  607;  Ford  v.  David,  i  Bosw.  571;  Howard  v.  Taylor, 
ii  How.  Pr.  380;  7  Duer,  604;  Banks  v.  Maher,  2  Bosw.  690;  Terry 
v.  Roberts,  15  How.  Pr.  65;  but  see  Barribeau  v.  Brant,  17  How.  U.S. 
43.)  Upon  the  death  of  an  assignee  for  the  benefit  of  creditors,  pend- 
ing an  action  in  the  nature  of  replevin,  brought  by  him  to  recover 
damages  from  a  sheriff  for  the  tortious  taking  of  assets,  the  proper 
parties  to  be  substituted  are  the  personal  representatives  of  the  deceased, 
since  the  action  relates  to  personal  property.  Emerson  v.  Bleakley, 
5  Abb.  Pr.  (N.S.)  350. 

159.  Facts  must  be  Alleged. — An  answer  should  allege  the 
facts,  showing  why  the  plaintiff  is  not  a  real  party  in  interest.     (Russell 
v.  Clapp,  7  Barb.  482;  Fosdick  v.  Groff,  22  How.  Pr.  158.)     But  it  is 
not  necessarily  frivolous.     (Tamissier  v.  Cassard,   17  Abb.  Pr.    187.) 
The  answer  is  not  frivolous  for  neglecting  to  name  the  assignee,  or 
designating  him  as  John  Doe.      (Smith  v.   Mead,    14  Abb.  Pr.  262; 
Metropolitan  Bank  v.  Lord,  i  Id.  185.)     If  it  appears  by  the  pleadings 
that  the  assignment  was  in  trust,  it  should  be  also  alleged  that  the 
assignee  accepted  it.     Whitlock  v.  Fiske,  3  Edw.  131. 

160.  Insufficient  Pleas. — A  plea  entirely  addressed  to  the  right 
to  recover  of  a  third  person  for  whose  use  the  suit  is  brought,  is  bad 
on  demurrer.     (Sydam  v.  Cannon,  i  Houst.  431.)     So,  on  the  ground 
that  the  title  of  the  plaintiff  is  merely  colorable.     (Boyreau  v.  Camp- 
bell, i  Me  All.  119.)     Or  that  a  demand  has  been  colorably  assigned, 
in  order  to  evade  a  discharge  under  the  insolvent  law,  is  not  to  be 
treated  as  dilatory  and  captious.     Wallace  v.  Clark,  3  Woodb.  &  M.  357. 

161.  Must   be   Specially  Set   up. — The  objection  that  the 
plaintiff  is  not  the  real  party  in  interest  must  be  set  up  in  the  answer, 
to  enable  defendant  to  rely  upon  it,  or  it  will  be  unavailing  on  the  trial, 
even  if  the  fact  should  appear  from  the  examination  of  witnesses. 
(Jackson  v.  Whedon,  i  E.  D.  Smith,  141;  Savage  v.  Corn  Exchange 
etc.  Ins.  Co.,  4  Bosw.  i.)      But  if  it  appear  from  the  face  of  the  com- 
plaint that  defendant  is  not  the  real  or  true  party  plaintiff,  then  the 
objection  should  be  made  by  demurrer. 

162.  Set-Off. — In  an  action  by  the  assignee  of  a  claim,  a  demand 
existing  prior  to  the  assignment,  in  favor  of  defendant,  and  against  the 


FORMS     OF    SPECIAL    PLEAS.  751 

assignor,  is  unavailable  as  a  counter  claim,  and  if  so  pleaded  no  reply 
is  necessary.  (Dillaye  v.  Niles,  4  Abb.  Pr.  253;  Ferreira  v.  Depew,  4 
Id.  131.)  To  render  it  available  as  an  equitable  defense,  it  must  be 
pleaded  as  a  defense.  (Ferreira  v.  Depew,  4  Id.  131:  Wolf  v.  H., 
13  How.  Pr.  R.  84.)  In  an  action  brought  by  an  assignee  of  a 
demand,  an  answer  interposing  as  a  set-off  a  claim  subsisting  in  favor 
of  the  defendant  against  the  assignor,  is  not  to  be  regarded  as  setting 
up  a  counter  claim ;  and  the  plaintiff  need  not  put  in  a  reply  of  the 
Statute  of  Limitations  in  order  to  avail  himself  of  such  Statute  against 
the  claim  so  set  up.  (Thompson  v.  Sickles,  46  Barb.  49.)  A  demand 
against  the  plaintiff's  assignor,  who  is  not  a  pa*r|y,  is  not  generally 
available.  (Cunmings  v.  Morris,  25  N. Y.  625;  Dillaye  v.  Niles,  4 
Abb.  Pr.  253;  Ferreira  v.  Depew,  4  Id.  131;  Spencer  v.  Babcock,  22 
Barb.  326.)  But  when  a  creditor,  having  a  debt  due  him  by  mortgage, 
assigns  the  debt  and  mortgage,  a  judgment  in  favor  of  a  third  person 
against  the  creditor  purchased  by  the  debtor  after  the  assignment,  but 
before  notice  to  him,  constitutes  an  offset  pro  tanto  to  the  debt  in  an 
action  upon  it  by  the  assignee.  McCabe  v.  Grey,  20  Cal.  509. 


No.  616. 

iii.     Want  of  Capacity — Denial  of  Plaintiff 's  Corporation. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  there  was  not  at  the  commencement  of  this  ac- 
tion,  nor  is  there  now  any   such  corporation   as  the 

Mining  Company,  named  as  plaintiff  in  this 

action. 


163.  Consolidated  Corporation. — Where  by  state  statute,  power 
is  given  to  connecting  railway  corporations  to  merge  and  Consolidate 
their  stock,  and  such  merger  and  consolidation  has  been  judicially  de- 
cided by  the  Supreme  Court  of  the  State  to  be  a  dissolution  in  law  of 
the  previous  companies,  and  the  creation  of  a  new  corporation  with 
new  liabilities;  in  such  case,  where  the  declaration  avers  that  the  de- 
fendant had  agreed  that  stocks  of  one  of  the  connecting  railroads  should 


752  FORMS     OF    SPECIAL    PLEAS. 

be  worth  a  certain  price,  at  a  certain  time  and  in  a  certain  place,  and 
the  plea  sets  up  that  under  the  Statute  the  stock  of  the  railway  named 
was  merged  and  consolidated  by  the  consent  of  the  party  suing,  with  a 
second  railway  named,  so  forming  "one  joint  stock  company  of  the  said 
two  corporations,"  under  a  corporate  name  stated,  such  plea  is  good, 
though  it  do  not  aver  that  the  consolidation  was  done  without  the  con- 
sent of  the  defendants.  (Clearwater  v.  Meredith,  i  Wallace  U.S.  25.) 
Such  a  plea  contains  two  points  only  which  the  plaintiff  can  traverse, 
the  fact  of  consolidation,  and  the  fact  of  consent;  and  these  must  be 
denied  separately.  If  denied  together,  the  replication  is  double  and 
bad.  Id. 

164.  Denial  of  Incorporation. — The  want  of  capacity  to  sue 
or  be  sued  must  be  specially  alleged.     (Brooks  v.  Chilton,  6  Cal.  640; 
Cal.  Stm.  Nav.  Co.  v.  Wright,  8  Cal.  585;  White  v.  Moses,  n  Id.  69; 
Society  for  Prop,  of  Gosp.  v.  Town  of  Pawlet,  4  Pel.  480;  Philadelphia 
R.  R.  Co.  v.  Quigley,  21  How.  U.S.  202;  Dillaye  v.  Parks,  31  Barb.  132.) 
By  pleading  to  the  merits  the  objection  is  waived.     (Conrad  v.  Atlantic 
Ins.  Co.,  i  Pet.  386;  Society  for  Prop,  of  Gosp.  v.  Town  of  Pawlet, 
4  Pet.  480;  Yeaton  v.  Lyman,  5  Id.  223.)     While  under  the  Statutes 
of  California,  1862,  p.  10,  the  due  incorporation  of  a  corporation  can- 
not be  inquired  into  collaterally,  yet  a  private  person  is  not  thereby  pre- 
cluded from  denying  that  it  is  a  corporation  dejure  or  de facto.     Oroville 
and   Virginia  City  Railroad   Co.    v.  Plumas  Co.,  Cal.  Sup.  Ct.,  Apl. 
T.,  1869. 

165.  Denial    not  New  Matter. — Where  the  defendants  are 
sued  by  a  corporate  name,  though  the  complaint  does  not  allege  that 
the  defendants  are  incorporated,  still  plaintiff  must  prove  the  fact,  and 
a  denial  that  defendants  are  a  corporation  is  not  new  matter.     (Stod- 
dard  v.  Onondaga  Ann.   Conf.,  12  Barb.  573.)     Before  the  Revised 
Statutes  of  New  York,  the  denial  of  incorporation  amounted  only  to  the 
general  issue.     (Hartford  Bank  v.  Murrell,  i   Wend.  87;  Welland  Canal 
Co.  v.  Hathaway,  8  Id.  480;  Wood  v.  Jefferson  County  Bank,  9  Coiv. 
194.)     And  it  was  equally  bad  when  applied  to  foreign  corporations. 
(Farmers'  and  Mechanics'  Bank  v.  Rayner,  2  Hall,  195.)     But  under 
the  revised  statutes,  to  require  a  domestic  corporation  plaintiff  to  prove 
its  corporate  organization,  the  defendant  must  specially  plead  the  non- 
existence  of  such  corporation;  and  this  plea  was  a  good  plea  in  bar. 
(Methodist  Episcopal  Church  v.  Tryon,  i  Den.  451;  see,  also,  Bank  of 
Genesee  v.  Patchin  Bank,  13  N.Y.  309;  Park  Bank  v.  Tilton,  15  Abb. 


FORMS     OF    SPECIAL    PLEAS.  753 

Pr.  384.)     But  such  a  denial  cannot  be  made  on  information  and  be- 
lief.    East  River  Bank  v .  Rogers,  7  Bosw.  493. 

166.  Dissolution. — An  action  by  a  corporation  is  not  abated  by 
dissolution,  but  may  be  continued  in  corporate  name.     N.Y.  Marbled 
Iron  Works  v.  Smith,  4  Duer,  362;  Talmage  v.  Pell,  9  Paige,  410. 

167.  Estoppel. — As  a  general  rule,  corporations  have  power  to 
waive  their  rights,  and  are  bound  by  estoppels  in  pat's,  like  natural  per- 
sons.    (Hale  v.  Union  Ins.  Co.,  32  N.H.  295.)     When  an  association 
assumes  a  name  and  exercises  the  powers  of  a  corporation,  it  is  estopped 
from  denying  its  corporate  liabilities.     (United  States  Express  Co.  v. 
Bedbury,  34  III.  459.)      A  corporation  which  has  entered  into  con- 
tracts in  its  corporate  capacity  is  estopped,  when  sued  thereon,  from 
denying  its  corporate  existence.     (Callender  v.  Painesville  and  Hudson 
River  R.R.  Co.  1 1  Ohio,  516.)     Where  defendant  accepted  the  office  of 
treasurer  of  an  incorporation,  and  served  for  several  years  as  such,  he 
was  estopped  from  denying  its  corporate  existence.     (14  Johns.  238; 
All  Saints'  Church  v.  Lovett,  i  Hall,  191.)     One  entering  into  a  con- 
tract with  a  corporation  is  estopped  from  setting  up  in  an  action  upon 
such  contract  that  the  corporation  was  not  legally  framed.     3  Sandf. 
170;  17  Barb.  378;  17  Ohio,  407;  White  v.  Coventry,  29  Barb.  305; 
to  same  effect,  White  v.  Ross,  15  Abb.  Pr.  66;  Hyatt  v.  Esmond,  37 
Barb.  60 1 ;  Hyatt  v.  Whipple,  Id.  595;  Cooper  v.  Shaver,  41  Barb.  151 ; 
but  compare  Welland  Canal  Co.  v.  Hathaway,  8  Wend.  480. 

168.  General  Denial. — To  put  the  plaintiff  to  proof  of  his  cor- 
porate capacity  in  this  case,  a  general  denial  is  not  sufficient,  but  the 
answer  must  deny  the  existence  of  such  a  corporation.     Park  Bank  v. 
Tilton,    15   Abb.    Pr.   384;  Bank   of  Havana  v.   Wickham,  7  Abb. 
Pr.  134. 

169.  Money  Count. — A  denial  of  knowledge  or  information  that 
the  corporation  was  indebted  in  the  sum  of  $744,  or  any  other  sum. 
Second,  And  allegations  that  the  plaintiff  was  instructed,  by  resolution 
of  the  directors,  to  expend  the  earnings  of   the  corporation  which 
should  come  into  his  hands,  and  no  more;  and  that,  with  knowledge 
of  the  amount  of  earnings  and  of  such  resolution,  he  made  further  ad- 
vances in  his  own  name.    Held,  that  the  answer  did  not  admit  but  de- 
nied that  the  sum  of  $800  was  expended  by  direction  of  the  Corpora- 
tion.    The  second  defense  is  not  the  less  a  denial  of  the  allegations  of 
the  complaint,  if  it  be  conceded  that  other  portions  of  that  answer 

48 


754  FORMS    OF    SPECIAL   PLEAS. 

introduce  new  matter.  (Simmons  v .  Sisson,  26  N.F.  264.)  The  first 
defense,  it  seems,  is  not  a  mere  denial  of  a  legal  conclusion,  but  is 
equivalent  to  nil  debet,  and  puts  the  plaintiff  to  proof  of  his  cause  of 
action.  If  insufficient,  it  was  too  late  to  object  at  the  close  of  the 
trial.  Id. 

170.  Must  be  Denied. — If  evidence  is  required  on  that  point, 
it  must  be  because  that  is  a  point  in  issue;  and  it  cannot  be  in  issue 
unless  it  is  affirmed  in  the  pleadings  on  one  side,  and  denied  on  the 
other.     See  Ang.  and  Ames  on  Corp.  631,  and  cases  cited;  Oroville 
and  Virginia  City  Railroad  Company  v.  Supervisors  of  Plumas  County, 
Cal.  Sup.  Ct.,  Apr.  T.,  1869. 

171.  Positive  Denial. — The  rule  which  requires  a  defendant  to 
answer  positively  as  to  the  facts  alleged  in  a  verified  complaint,  which 
are  presumptively  within  in  his  own  knowledge,  applies  to  municipal 
corporations.     The  statute  makes  no  distinction  between  the  rules  of 
pleading  applicable  to  natural  persons,  and  those  applicable  to  artificial 
persons.     (San  Francisco  Gas  Co.  v.  The  City,  9  Cal.  453.)    There 
may  exist  the  best  reasons  for  a  different  rule  of  pleading  when  a  mu- 
nicipal corporation  is  a  defendant;  but  this  Court  can  make  no  distinc- 
tion, because  the  Code  makes  none.     It  is  a  matter  for  the  Legislature, 
and  not  for  the  Court.     Id. 

172.  Sufficient  Denial. — Where  the  complaint  averred  a  con- 
tract between  plaintiff  and  the  Board  of  Supervisors,  on  behalf  of  the 
County,  and  the  answer  admitted  a  contract  between  the  plaintiff  and 
another  on  the  one  side,  and  the  County  on  the  other,  and  averred  that 
this  was  the  only  contract  made  by  the  County  in  relation  to  the  matter, 
and  denied  that  any  other  was  made  by  the  Board  of  Supervisors :  Held, 
that  this  denial  was  sufficient  to  put  the  plaintiff  on  proof  of  the  con- 
tract.    (Murphy  v.  Napa  County,  20  Cal.  497.)     In  an  action  against 
a  corporation,  to  recover  dividends  which  have  accrued  on  its  stock,  if 
the  plaintiff  avers,  "  that  from  a  date  named,  she  was,  has  been,  and 
still  is,  the  owner  in  her  own  right,  and  as  her  separate  property,  of  the 
stock,"  the  answer  raises  an  issue,  if  it  denies  that,  at  the  date  named, 
"the  plaintiff  was,  has  since  been,  or  still  is,  the  owner  in  her  own 
right  and  as  her  separate  property  "  of  the  stock.     The  qualifications  of 
the  denial  by  the  words  "  in  her  own  right  and  as  her  separate  prop- 
erty" are  mere  surplusage.     Dow  v.  Gould  and  Curry  Mining  Co.,  31 
Cal.  630. 


FORMS   OF    SPECIAL   PLEAS.  755 

173.  Want  of  Power  to  Act. — Where  the  answer  in  a  suit 
against  a  corporation,  on  its  note,  relies  simply  on  the  want  of  power  of 
the  corporation  to  issue  notes,  the  defendant  cannot  afterwards  object 
that  the  plaintiff  has  not  shown  that  the  officers  executing  the  note  were 
empowered  by  the  corporation  to  do  so.  Smith  v.  Eureka  Flour  Mills 
Co.,  6  Cal.  i. 


No.   617. 

iv.      Want  of  Capacity — Denial  of  Trusteeship. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  since  the  expiration  of  said  first  year  [or  after 

the  ....  day  of ,  18 . .],  he  has  not  been  a 

trustee  of  said  campany,  and  has  not  in  any  way  man- 
aged the  affairs  or  concerns  of  said  company,  as  such. 


174.  Denial   of    Subrcriptions   to    Stock. — That  he  never 
subscribed  for  any  stock  of  the  corporation  mentioned  in  the  complaint, 
and  never  became  a  stockholder  in  or  the  holder  or  owner  of  any  stock 
of  the  said  corporation,  in  his  own  right,  or  in  trust  for  others. 

175.  Denial  of  Interest — Stock  Sold. — That  on  or  about  the 

....  day  of ,  1 8 . . ,  he  sold  and  transferred  all  his  stock  and 

interest  in  the  said  company;  and  that  he  had  not  then,  nor  has  he  had 
since  that  time,  nor  has  he  now,  any  property  or  interest  of  any  nature 
or  kind  whatsoever  in  the  said  company,  as  stockholder,  or  trustee,  or 
otherwise. 

176.  Individual  Answer. — Stockholders  of  a  corporation,  who 
have  been  allowed  to  put  in  answers  in  the  name  of  the  corporation, 
cannot  be  regarded  as  answering  for  the  corporation  itself.    In  a  special 
case  however,  a  stockholder  may  be  allowed  to  become  a  party  defend- 
ant, for  the  purpose  of  protecting  his  own  interests,  and  the  interest  of 
such  stockholders  as  choose  to  join  with  him  in  the  defense.     Bronson 
v.  La  Crosse  R.R.  Co.,  2  Wall.  283. 


756  FORMS    OF    SPECIAL   PLEAS. 

177.  Non-Joinder  of  Parties. — Stockholders  of  insolvent  cor- 
porations, when  sued  by  creditors,  may,  under  the  plea  of  payment  with 
leave,  take  advantage  of  non-joinder  of  proper  parties,  and  need  not 
plead  specially  in  abatement.  Hoard  v.  Wilcox,  47  Penn.  51. 


No.  618. 

v.     Want  of  Capacity — Denial  of  Official  Capacity. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies 
that  the  plaintiff  is  [executor  or  administrator  of  the 
said  deceased,  or  otherwise],  as  alleged,  or  at  all. 

JVo.  619. 

vi.      Want  of  Capacity — Partnership  of  Plaintiff. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  the  cause  of  action  set  forth  in  the  complaint 
did  not  accrue  to  the  plaintiff  individually,  but  to  the 
plaintiff  and  one  R.  S.  under  the  firm  name  \_giving  name 
of  firm\,  and  that  said  partners,  as  such,  when  this  ac- 
tion was  brought,   held  and  owned  the  said  cause  of 
action  jointly. 

II.  That  the  said  R.  S.  is  still  living. 

178.  Denial. — A  mere  denial  of  the  act  is  not  a  denial  of  the 
partnership.  Anable  v.  Steam  Engine  Co.,  16  Alb.  Pr.  286. 


FORMS    OF    SPECIAL    PLEAS.  757 

JVo.  620. 

vii.      Want  of  Capacity — Partnership  of  the  Defendant. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  the  contract  set  forth  in  the  complaint  was 
not  made    by  him  individually,  but    by  him  and    one 
R.  S.  jointly  as  partners,  under  the  firm  name  [give  the 

firm  name~\. 

II.  That  the  said  R.S.  is  still  living. 

No.  621. 

i.     Want  of  Consideration — Common  Form. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  received  no  consideration  for  the  [promisory 
note]  mentioned  therein.  \Mistake  or  any  fact  showing 
fraud  should  be  alleged^ 

179.  How    Pleaded. — In  pleading  failure  of  consideration,  an 
issue  of  law  must  not  be  tendered.     (Bennett  v.  Martin,  6  Mo.  460.) 
An  answer  of  an  entire  or  partial  failure  of  consideration,  which  does 
not  set  out  the  facts  showing  the  failure,  or  show  how  much  the  whole 
consideration  for  the  property  was,  and  gives  no  data  by  which  the 
Court  can  determine  what  deduction,  if  any,  should  be  made,  is  bad. 
Billian  v.  Hecklebrath,  23  Ind.  71. 

180.  Insufficient  Plea. — An  answer  setting  up  in  defense  a  fail- 
ure to  perform  an  agreemnnt  to  execute  an  idemnifying  bond,  is  bad, 
when  it  does  not  set  forth  any  injury  resulting  from  such  failure,  but 
shows  that  injury  can  never  happen.       Billian  v.   Hercklebrath,  23 
Ind.  71. 


758  FORMS    OF    SPECIAL    PLEAS. 

181.  Must  be  Affirmatively  Pleaded. — All  matters  in  con- 
fession and  avoidance,  showing  that  the  contract  sued  upon  was  void  or 
voidable  in  point  of  law,  must  be  affirmatively  pleaded..     (Finley  v. 
Quirk,  9  Min,  194.)     It  seems  that  illegality  in  a  contract  sued  on, 
though  shown  by  the  testimony,  cannot  avail  the  defendant,  unless  it  is 
alleged  in  the  pleadings;  and  that  an  allegation  in  the  answer  that  the 
contract  was  illegal,  coupled  with  an  enumeration  in  the  same  para- 
graph of  specific  grounds  of  illegality,  does  not  entitle  the  defendant  to 
prove  any  grounds  of  illegality  not  so  specified.    (Dingeldein  v.  Third 
Av.  R.R.Co.,  9  Bosw.  79.)    A  plea  seeking  to  avoid  a  bond  for  being 
illegally  taken   should   specially  state   all  the  facts  which  show  that 
illegality.      United  States  v.  Sawyer,  i   Gall.  86. 

182.  Partial  and  Total  Failure. — An  answer  setting  up  for  a 
defense  a  failure  of  consideration  must  show  whether  it  is  a  partial  or 
total  failure.    (Clough  v,  Murray,  19  Abb.  Pr.  97.)    A  partial  failure  of 
consideration  cannot  be  pleaded  in  bar  of  an  action  upon  a  note  given 
for  the  purchase-money  of  land.      (Reese  v.  Gordon,  19  Cal.  147.)' 
It  is  generally  no  defense  to  a  promissory  note.     (Varnam  v.  Manro,  2 
Cranch,  425.)     Partial  failure  of  consideration  could  not  be  given  in 
evidence,  unless  specially  pleaded.      Wallace  v.  Boston,  10  Mo.  660. 

183.  Sufficient  Averment. — Where  the  obligor  of  a  single  bill 
was  sued  by  an  assignee,  and  pleaded  that  the  bill  was  given  for  the 
purchase  of  horses  which  were  not  as  sound  nor  of  as  high  a  pedigree 
as  had  been  represented  by  the  seller,  such  a  plea  was  admissable. 
Withers  v.  Green,  9  How.  U.S.  213. 


No.  622. 

ii.     The   Same — That  the  'Debt  was  for    Money  Lost  at  Play. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.   That    the  defendant   and    the    plaintiff    played 

together  at  a  game  of  chance  called ,  for  stakes, 

upon  credit,  and  not  for  ready  money;  and  at  said 
games  the  plaintiff  won dollars  of  the  defend- 
ant, which  he  did  not  pay. 


FORMS    OF    SPECIAL    PLEAS.  759 

II.  That  thereafter  the  defendant  gave  the  plaintiff 
the  note  mentioned  in  the  complaint  for  said  money  so 
staked  and  lost. 

No.  623. 

in.     The    Same — Thai  the  Note   was   Given   to  Compound  a   Felony. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

I.  That  heretofore,  on,  etc.,  at,  etc.,  one  C.  R.,  the  son 
of  the  said  defendant,  had  feloniously  \here  designate  the 
crime — e.g.,    thus:    stolen,  taken,    and    carried    away 
,  the  property  of  the  plaintiff] . 

II.  That  the  said  defendant,  in  order  to  compound 
and  settle  said  felony,  gave  the  said  note ;  in  considera- 
tion of  which  the  plaintiff  and  others  desisted  from  in- 
forming and  prosecuting  upon  said  felony. 

III.  That  there  was  no  other  consideration  for  said 
note. 

\ 
185.    Form. — From  Abbotts'  Forms,  No.  801. 

No.  624. 

i.      Want  of  Jurisdiction   of  the  Person. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  was,  at  the  commencement  of  this  action,  and 
is  now  Consul  of ,  for  the  City  of , 


760  FORMS  OF  SPECIAL  PLEAS. 

duly  accredited  to  the  President  of  the  United  States, 
and  by  him  received  and  acknowledged  as  such  [or 
otherwise]. 


186.  Character  of  the  Defense. — Defenses  in  abatement  of 
the  suit  or  going  to  the  jurisdiction,  being  preliminary  in  their  nature, 
must  be  taken  advantage  of  by  plea,  and  cannot  be  taken  advantage  of 
in  a  general  answer,  which  necessarily  admits  the  right  and  capacity  of 
the  party  to  sue.     Livingstone.  Story,  n  Pet.  351. 

187.  Corporation. — The  fact  that  a  corporation  aggregate  appears 
and  pleads  by  attorney  to  the  jurisdiction,  is  not  a  waiver  of  the  ob- 
jection.    Commercial  and  Railroad  Bank  of  Vicksburg  v.  Slocomb,  14 
Pet.  60. 

188.  Foreclosure  of  Mortgage. — The  question  of  jurisdiction 
arising  in  a  case  where  a  mortgagor  and  mortgagee  were  citizens  of  the 
same  state,  and  the  mortgagee  had  assigned  the  mortgage  to  a  citizen  of 
another  state,  should  have  been  raised  by  a  plea  in  abatement.     Upon 
a  trial  of  the  merits  it  was  too  late.    Smith  v.  Kernochen,  7  How. 
U.S.  198. 

189.  Must  be  Specially  Pleaded. — A  plea  to  the  jurisdiction 
in  equity  is  like  a  plea  in  abatement  at  law,  which  cannot  be  put  in  after 
a  general  imparlance,  or  be  received  when  it  does  not  give  the  plaintiff 
a  better  writ.    Baker  v.  Biddle,  Baldw.  394. 

190.  Remedy  at  Law. — The  objection  that  a  court  of  equity 
has  not  jurisdiction  of  the  suit,  because  complainant  has  an  adequate 
remedy  at  law,  should  be  taken  by  plea  or  answer.     It  is  too  late  to 
raise  it  for  the  first  time  upon  appeal,  unless  the  want  of  jurisdiction  is 
apparent  on  the  face  of  the  bill.     Wylie  v.  Coxe,  15  How.  U.S.  415. 

191.  Residence. — A  defendant  who  is  sued  out  of  his  district 
may  plead  his  personal  privilege.     Teese  v.  Phelps,  i  Me  All.  17. 

192.  Statement  as  to  Time. — A  plea  in  abatement,  denying 
the  truth  of  the  averments  as  to  residence,  etc.,  in  the  present  tense 
instead  of  in  the  past  tense,  so  as  to  make  issue  with  reference  to  the 
time  of  the  commencement  of  the  suit,  is  not  so  clearly  frivolous  as 


FORMS    OF    SPECIAL    PLEAS.  761 

to  require  the  Court  to  set  it  aside  or  disregard  it.     10  Ad.  &.  E.  17; 
Eberly  v.  Morse,  24  How.  U.S.  147. 

193.  United   States   Courts. — Wherevthe  jurisdiction  of  the 
Circuit  Court  of  the  United  States  appears  by  proper  averments  upon 
the   record,  the  defendant  can  only  impugn  it  on  a  special  plea;  the 
objection  cannot  be  taken  by  answer.     Rule  39  in  Equity;  Wickliffe  v. 
Owings,  17  How.  U.S.  47. 

194.  When  a  Defense. — This  defense  is  sustainable  only  where 
the  person  is  not  subject  to  the  jurisdiction  of  the  Court,  and  not  where 
the  objection  is  merely  that  original  process  has  not  been  duly  served. 
Nones  v.  Hope  Mutual  Life  Ins.  Co.,  5  How.  Pr.  96;  Bridge  v.  Pay- 
son,  i  Duer,  614. 

195.  When  Waived. — If  a  plea  to  the  jurisdiction  and  a  plea 
non  assumpsit  be  put  in,  and  the  issue  be  made  up  on  the  latter  plea 
only,  no  notice  being  taken  of  the  former,  and  upon  this  state  of  the 
pleadings  the  cause  goes  on  trial,  the  plea  to  the  jurisdiction  is  con- 
sidered as  waived.     Bailey  v.  Dozies,  6  How.  U.S.  23. 


No.  625. 

ii.     The  Same — By  Foreign    Corporation. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

I.  That  the  defendant   [foreign   corporation]    is    a 
corporation   created    by   the   laws    of    the    State    of 

[or   other  foreign  government  or  country\, 

and  not  by  the  laws  of  this  State. 

II.  That  the  plaintiff  is  not  a  resident  of  this   State, 
but  resides  at ,  in  the  State  of 

III.  That  the  said  \Jiere  state  facts  showing  that  the 
cause  of  action  arose  without  the  State,  and  is  not  upon 
a  contract  made,  executed,  or  delivered  in  this  State~\. 


752  FORMS    OF    SPECIAL    PLEAS. 

No.  626. 

iii.      Want  of  Jurisdiction  of  the  Subject. 
[TITLE.] 

The    defendant    answers     to    the    complaint,    and 
alleges: 

That  the  supposed  cause  of  action  accrued  to  the 
said   plaintiff,  if  at   all,  out  of  the  jurisdiction  of  this 

court;  that  is  to  say,  at ,  in  the  County  of 

,t  and   not   at ,  in    the    County   of 

,  or  elsewhere  within  the  jurisdiction  of  this 

Court,  or  within  the  said  last  named  County. 

196.  Note. — Under  our  practice,  when  the  action  is  brought  in 
the  wrong  county,  it  is  usual  to  move  the  Court  to  change  the  place  of 
trial  before  answering.     If  not  made  before  answering,  it  cannot  be 
made  at  all. 

197.  What  must  be  Shown. — In  Massachusetts,  a  plea  to  the 
jurisdiction  should  show  that  some  other  court  in  the  same  State  has 
jurisdiction.     Lawrence  v.  Smith,  5  Mass.   362;  Otis  v.  Wakeman,  I 
Hill.  604;  The  King  v.  Johnson,  6  East.  583,  600. 

198.  A   Bar   to  the  Action. — A  plea  to  the  jurisdiction,  on 
account  of  limited  jurisdiction,  is  a  plea  in  bar.     (Smith  v.  McCleod, 
I  Cranch  C.  Ct.  43.)     A  question  as  to  the  jurisdiction  of  the  court 
cannot  be  raised  under  the  general  issue,  but  must  be  specially  pleaded. 
(6  How.  Pr.  i;  Eberly  v.  Morse,  24  How.  U.S.  147;  Teese  v.  Phelps, 
i  Me  All.  U.S.  17;  The  "  Abby,"  i  Mass.  360.)  But  where  the  subject 
matter  is  not  within  the  jurisdiction  of  the  court,  the  exception  may  be 
taken  under  the  general  issue.      (Marssonnaire  v.  Keating,   2   Gall. 
325.)     Although  a  plea  in  bar  admits  the  jurisdiction,  the  District 
Court  have  power,  after  such  a  plea  has  been  put  in,  to  permit  the 
defendant  to  withdraw  it,  and  plead  in   abatement  a  denial  that  the 
averments  relied  on  to  show  jurisdiction  were  true.     It  is  proper  to 
give  leave  to  amend  thus  where  the  defendant  shows  by  affidavit  that 
the  averments  as  to  jurisdiction  were  false  and  fraudulent.     Eberly  v. 
Moore,  24  How.  U.S.  147. 

• 


CHAPTER  IV. 

COUNTER    CLAIM. 

Wo.  627. 

Counter  Claim  Alone. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  for  a 
counter  claim  alleges: 

That,  etc.     \_State  a  cause  of  action  precisely  as  in  a 


Wherefore   the   defendant   demands  judgment   for 
.  dollars. 


"L  Cross  Complaint. — Where  the  answer  set  up  a  set-off  and 
counter  claim,  and  prayed  for  a  judgment  against  the  plaintiff  for  the 
amount  alleged  to  be  due,  it  is  not  a  cross  complaint  within  the  mean- 
ing of  §§  38,  46,  50  and  65  of  the  Practice  Act,  and  therefore  does 
not  require  to  be  answered  by  the  plaintiff.  (Herold  v.  Smith,  34  Cal. 
122;  Jones  v.  Jones,  Cal.  Sup.  Ct.,  Oct.  T.,  1869.)  A  cross  bill  being 
an  auxiliary  bill,  simply  must  be  a  bill  touching  matters  in  question  in 
the  original  bill.  (Cross  v.  Del  Valle,  i  Wall.  U.S.  5.)  In  the  United 
States  Courts,  the  filing  of  a  cross  bill  on  a  petition,  without  the  leave 
of  the  Court,  in  an  irregularity,  and  such  cross  bill  may  be  properly  set 
aside.  Bronson  v.  La  Crosse  R.R.  Co.,  2  Wall  U.S.  283. 

2.  Cross  Demands, — When  cross  demands  have  existed  between 
persons,  under  such  circumstances  that  if  one  had  brought  an  action 
against  the  other,  a  counter  claim  could  have  been  set  up,  neither  shall 
be  deprived  of  the  benefit  thereof  by  the  assignment  or  death  of  the 


764  FORMS    OF    ANSWERS. 

other;  but  the  two  demands  shall  be  deemed  compensated,  so  far  as 
they  equal  each  other.  (Cal.  Pr.  Act,  §  48.)  A  debtor  has  a  right  to 
purchase  cross  demands  against  a  partnership,  and  set  them  up  as  a 
defense  against  a  debt  due  by  him  to  the  partnership.  Naglee  v . 
Minturn,  8  Cal.  540;  Marye  v.  Jones,  9  Cal.  335. 

3.  Counter  Claim  Defined. — A  counter  claim  is  a  cause  of 
action,  in  which  a  several  judgment  might  be  obtained  against  the 
plaintiff  in  favor  of  the  defendant,  in  an  action  arising  out  of  the  trans- 
action set  forth  in  the  complaint  and  answer,  or  connected  with  the 
subject  of  the  action.     (Drake  v.  Cockroft,  4  E.  D.  Smith.  34;  S.C.,  i 
Abb.  Pr.   203;  Askins  v.  Hearns,  3  Abb.  Pr.   184;  Schnaderbeck  v 
Worth,  8  Id.  37;  Xenia  Branch  Bank  v.  Lee,  2  Bosw.  694;  S.C.,  7  Abb. 
Pr.  372;  De  Leyer  v.  Michaels,  5  Abb.  Pr.  203;  Cottier  v.  Babcock, 
7  Id.  392;  Barhyte  v.  Hughes,  33  Barb.  320;  Mayor  etc.  of  N.Y.  v. 
Parker  Vein  Steamship  Co.,  12  Abb.  Pr.  300.)     In  an  action  arising 
upon  contract,  it  is  any  other  cause  of  action  arising  also  upon  contract, 
and  existing  at  the  commencement  of  the  action.     (Cal.  Pr.  Act,  §  47; 
N.Y.  Code,  §  150.)     Or,  in  other  words,  a  cause  of  action  in  favor  of 
the  defendant,  upon  which  he  might  have  sued  the  plaintiff  and  ob- 
tained affirmative  relief  in  a  separate  action.     (Howard  v.  Shores,  20 
Cal.  277;  Belleau  v.  Thompson,  33  Cal.  495.)     The  subject  of  counter 
claim  will  be  found  fully  discussed,  and  the  extent  of  the  term  denned, 
in  The  Xenia  Branch  of  State  Bank  of  Ohio  v.  Lee,  2  Bosw.  694; 
see  Lemon  v.  Trull,  13  Hoiv.  Pr.  248;  affirmed  by  16  How.  Pr.  576; 
see,  also,  Pattison  v.  Richards,  22  Barb.   143;  Vassar  v.  Livingston,  3 
Kern.  248;  affirming  4  Duer,  285;  Kneedler  v.  Sternburgh,  10  How. 
Pr.  67;  Welch  v.  Hazelton,  14  How.  Pr.  97;  Wolf  v.  H.,  13  How. 
Pr.  84. 

4.  Damages  Set  Off! — If  plaintiff's  cause  of  action  is  for  dam- 
ages for  breach  on  the  part  of  the  defendant,  defendant  may  interpose 
a  counter  claim  for  damages,  for  a  breach  of  the  same  contract  by 
plaintiffs.     Dennis  v.  Belt,  30  Cal.  247. 

5.  Damages,  when  not  Available.— Damages  which  do  not 
legally  result  from  the  breach  of  the  contract  cannot  be  recovered  un- 
less they  are  specially  claimed  and  set  forth  in  the  pleading.    Thus,  dam- 
ages sustained  by  vendee  of  goods  by  reason  of  his  inability  to  comply 
with  a  contract  made  by  him  with  a  third  person,  do  not  legally  result 
from  a  breach  of  the  contract  of  his  vendor  to  deliver  the  goods  to 


COUNTER   CLAIM.  765 

him;  and  in  an  action  by  his  vendor  against  him,  cannot  be  recouped 
from  the  plaintiff's  claim,  unless  such  damages  are  specially  alleged 
and  set  forth  in  an  answer.  Cole  v.  Swanston,  i  Cal,  51. 

6.  Election  of  Remedy. — The  provision  of  the  Code  allowing 
counter  claims  is  permissive;  and,  in  general,  defendant  is  not  bound  to 
set  up  a  demand  as  a  counter  claim,  but  may  enfore  its  recovery  in  a 
separate  action.     (Hobbs  v.  Duff,  23  Cal.   596;  Halsey  v.  Carter,  i 
Duer,  667;  Barth  v.  Burt,  43  Barb.  628;  Collyer  v.  Collins,  17  Abb.  Pr. 
467.)     Nor  does  a  party  lose  his  right  to  bring  an  action  for  demand, 
which  he  might  have  pleaded  as  a  set-off  in  a  former  action,  but  neg- 
lected to  do.     (Hobbs  v.  Duff,  23  Cal.  596.)     So,  an  omission  to  assert 
a  cross-claim,  when  a  demand  is  presented  for  payment,  does  not  in- 
volve a  waiver  of  the  counter  claim;  nor  is  a  failure  to  discharge  an 
unfaithful  servant,  before  his  term  of  service  has  expired,  a  release  of 
damages  arising  from  his  neglect.     Stoddard  v.  Treadwell,  26  Cal.  300. 

7.  Essential  Conditions. — The  counter  claim   mentioned  in 
this  section  shall  be  one  existing  in  favor  of  the  defendant,  and  against 
the  plaintiff.     (4  Abb.  Pr.  131,  253;  Duncan  v.  Stanton,  30  Barb.  533; 
Wiltsie  v.  Northam,  3  Bosw.  162;  Cummings  v.  Morris,  Id.  560;  Boyd 
v.  Foot,  5  Id.  no;  Gleason  v.  Moen,  2  Duer,  639;  Van  Valen  v.  Lap- 
ham,  13  How.  Pr.  240;  Spencer  v.  Babcock,  22  Barb.  326;  Auburn 
City  Park  v.  Leonard,  20  How.  Pr.  193;  Bissell  v.  Pearson,  21  How. 
Pr.  130;  Boyd  v.  Foot,  5  Bosw.  no;  Chaffre  v.  Cox,  i  Hilt,  78;  Da- 
vidson v.  Remington,  12  How.  Pr.  310;  Gillespie  v.  Torrance,  4  Bosw. 
36;  Ogden  v.  Coddington,  2  E.  D.  Smith,  317;  Ives  v.  Goddard,  i 
Hilt.  434;  Merrick  v.  Gordon,  20  N.Y.  93;  Reed  v.  Latseen,  15  Barb. 
9;  Tyler  v.  Willis,  33  Barb.  327;  Van  de  Sande  v.  Hall,  13  How.  Pr. 
458;  Weeks  v.  Pryor,  27  Barb.  79;  Vassar  v.  Livingston,  13  NY.  248; 
Wolf  v.  H.,  13  How.  Pr.  84.)    And  it  must  be  existing  at  the  com- 
mencement of  the  action;  (Rice  v.  O'Connor,  10  Abb.  Pr.  362;)  and 
at  the  time  belong  to  the  defendant.     (Van  Valen  v .  Lapham,  5  Duer, 
689;  S.C.,  13  How.  Pr.  240;  Chambers  v.  Lewis,  n  Abb.  Pr.  210; 
affirming  S.C.,  2  Hilt.  591 ;  and  10  Abb.  Pr.  206.)     To  authorize  a  set- 
off  at  law,  the  debts  must  be  between  the  parties  in  their  own  rights, 
and  must  be  of  the  same  kind  and  quality,  and  be  clearly  ascertained 
or  liquidated;  they  must  be  certain  and  determined  debts.     Naglee  v. 
Palmer,  7  Cal.  543;  commented  on  in  Duff  v.  Hobbs,  19  Cal.  646; 
and  approved  in  Hobbs  v .  Duff,  23  Cal.  627. 

8.  Equitable  Defenses. — The  defendant  may  set  up  an  equita- 


766  FORMS    OF    ANSWERS. 

ble  defense  in  an  action  at  law,  but  if  he  relies  on  an  equitable  right  of 
action  as  a  defense,  he  must  plead  the  same  as  fully  as  if  he  were  bring- 
ing an  action  in  equity.  (Carpentier  v.  The  City  of  Oakland,  30  Cal. 
439.)  Equitable  as  well  as  legal  demands  may  be  set  up  as  counter 
claims.  (Bartlett  v.  Judd,  23  Barb.  262;  Currie  v.  Cowles,  6  Bosiv. 
452;  and  see  Lemon  v.  Trull,  13  How.  Pr.  248.)  Thus,  a  mistake  in 
a  contract,  and  a  claim  to  have  it  reformed,  may  be  set  up  as  a  counter 
claim.  (Wemple  v.  Stewart,  22  Barb.  154.)  But  in  cases  of  an  equi- 
table nature,  substantially  the  same  limitation  is  applied  as  was  in  respect 
to  filing  cross  bills  in  chancery,  which  were  allowed  only  as  to  matters 
touching  the  matters  in  the  original  bill.  Burns  v.  Kevins,  27 
Barb.  493. 

9.  Equitable  Set-Off — A  court  of  equity  will  compel  an  equi- 
table set  off,  when  parties  have  mutual  demands  against  each  other. 
(Russell  v.  Conway,  n  Cal.  93;  Hobbs  v.  Duff,  23  Cal.  596.)     Equity 
will  not  set  off  the  claim  of  an  individual  creditor  of  one  joint  owner 
of  a  judgment  against  the  judgment;  and  if  the  judgment  be  partner- 
ship assets,  the  individual  creditor  has  no  claim  to  any  part  of  it  until 
adjustment  of  the  firm  accounts.     Collins  v.  Butler,  14  Cal.  227. 

10.  How  Alleged. — It  is  enough  if'the  answer  states  a  cause  of 
action  against  the  plaintiff,  arising  out  of  the  contract  or  transaction  set 
forth  in  the  complaint,  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action.     (Allen  v.  Haskins,  5  Duer, 
332.)    Though  certain  defenses,  by  way  of  set-off,  are  pleaded  in  the 
answer  in  a  very  informal  and  inartificial  manner,  still,  if  the  facts 
showing  that  they  constitute  valid  claims  against  the  plaintiff  are  suffi- 
ciently stated,  the  defenses  ought  not  to  be  stricken  out.     (See  facts, 
Wallace  v.  Bear  River  Water  and  Mining  Co.,  18  Cal.  461.)    The 
facts  as  to  how  it  arose  out  of  the  transaction  must  be  stated  in  the 
answer.     Brown  v.  Buckingham,  n  Abb.  Pr.  387. 

11.  Joint  Claim. — To  justify  the  allowance  of  a  set-off  of  joint 
debt  due  from  plaintiff,  and  another  against  the  individual  claim  of 
plaintiff,  upon  equitable  grounds,  it  is  not  sufficient  to  show  that  the 
joint  debtors  owe  a  considerable  amount,  and  that  their  property  is 
encumbered  by  judgements,  mortgages,  and  attachments,  without  show- 
ing that  they  are  insolvent,  or  that  the  defendants  are  in  danger  of 
losing  their  demand.     Howard  v.  Shores,  20  Cal.  277. 

12.  Joint  and  Several  Claims. — A  joint  claim  by  two  persons 


COUNTER   CLAIM.  767 

cannot  be  pleaded  as  a  counter-claim  by  one  defendant,  but  he  may 
amend,  and  allege^that  the  whole  interest  therein  had  been  transferred 
to  him.  (Stearns  v.  Martin,  4  Cal.  229;  Russel  v.  Conway,  n  Id.  101; 
Collins  v.  Butler,  14  Id.  223.)  Demands  being  joint  and  several  are 
not,  strictly  speaking,  due  in  the  same  right;  'yet,  if  the  legal  and  equi- 
table liabilities  on  claims  of  money  become  vested  in  or  may  be  urged 
against  one,  they  may  be  set  off  against  separate  demands,  and  vice 
versa.  Russell  v.  Conway,  II  Cal.  101. 

13.  Must  be  Specially  Pleaded. — Under  the  plea  of  general 
issue,  evidence  of  a  counter-claim  is  not  admissible.    It  should  be  spe- 
cially pleaded.     (Hicks  v.  Green,  9   Cal.  75;   Deneale  v.  Young,   2 
Cranch  C.  Ct.  418.)     It  is  not  enough  to  allege  in  general  terms  that 
the  demand  is  a  counter  claim.     It  must  be  stated  specifically.     (Van 
Valen  v.  Lapman,  5  Duer,  689.)    To  entitle  a  defendant  to  set  off  a 
claim  against  a  demand  of  the  plaintiff,  he  must  set  forth  in  his  answer 
the  nature  of  the  claim  which  he  intends  to  set  off,  and  when  this  was 
not  done :  Held,  that  the  Court  below  properly  rejected  evidence  of  the 
claim  proposed  to  be  set  off.     Bernard  v.  Mullot,  i  Cal.  368. 

14.  Must    Defeat  Plaintiff's    Right.— The  demand   of   a 
counter  claim  must  operate  in  whole  or  in  part  to  defeat  the  plaintiff's 
right  of  recovery  in  the  action.     (Nat.  Fire  Ins.  Co.  v.  McKay,  2\  N.Y. 
191;  Mattoon  v.  Baker,  24  How.  Pr.  329.)     The  defendant  may  not 
only  defeat  the  plaintiff's  claim  by  pleading  a  set-off,  but  may  recover 
a  balance  in  excess  of  that  claim.     Ogden  v.  Coddington,  2  E.  D. 
Smith,  317. 

15.  Principal  and  Surety. — A  surety  cannot  avail  himself  of  a 
right  his  principal  may  have  to  recover  damages  for  a  breach  of  the 
principal  contract.     Gillespie  v.  Torrance,  25  N.Y.  306;  affirming  S.C., 
4  Bosw.  36;  7  Abb.  Pr.  462;  Lafarge  v.  Halsey,  4  Id.  397. 

16.  New  Matter. — New  matter  in  the  answer,  which  does  not 
constitue  a  counter  claim,  is  deemed  controverted.     Garner  v.  The 
Manhattan  Building  Association,  6  Duer,  539. 

17.  Recoupment. — Counter  claims  by  way  of  recoupment  may 
be  set  off  against  the  claim  of  plaintiff,  in  an  action  arising  out  of  a 
contract.     (McGinley  v.  Hardy,  18  Cal.  115;  Stoddard  v.  Treadwell, 
26  Id.  300;  Vassar  v.  Livingston,  3  Kern.  248;  Branch  of  State  B'k  of 
Ohio  v.  Lee,  2  Bosw.  694;  Gleason  v.  Moen,  2  Duer,  639;  Spencer  v. 


768  FORMS    OF    ANSWERS. 

Babcock,  22  Barb.  326.)  In  such  a  case,  damages  may  be  pleaded 
as  a  set  off,  and  evidence  adduced  to  prove  the  damages  embraced 
in  the  counter  claim  of  defendant.  (McGurley  v.  Hardy,  18  Cal. 
115;  Stoddard  v.  Treadwell,  26  Id.  300.)  But  they  must  be  specially 
claimed;  (Cole  v.  Swanston,  i  Cal.  51;  Hicks  v.  Green,  9  Cal.  74; 
Stoddard  v.  Treadwell,  26  Id.  306;)  or  they  will  not  be  allowed. 
Byxbie  v.  Wood,  24  N.K  607. 

18.  Rule   of  Pleading. — The   nature   of  the   claim   must   be 
set  forth.     (Bernard  v.  Mallot,  i  Cal.  368.)     And  if  sufficiently  pleaded, 
it  should  not  be  stricken  out.     (Wallace  v.  Bear  Riv.  Wat.  and  Min. 
Co.,  1 8  Cal.  471.)     It  must  contain  the  substance  necessary  to  sustain  an 
action  on  behalf  of  the  defendant  against  the  plaintiff,  if  the  plaintiff 
had  not  sued  the  defendant.      (Vassear  v.  Livingston,  13  N.Y.  248; 
affirming  S.C.,  4  Duer,  285.)     And  must  be  separately  stated.     (Kinney 
v.  Miller,  25  Mo.  576.)     Although  the  Code  (N.Y.)  does  not  expressly 
require  the  defendant  in  his  answer  to  state  the  relief  he  demands,  he 
must  set  forth  whether  he  interposes  a  mere  defense  or  a  counter 
claim.     Clough  v.  Murray,  19  Abb.Pr.  97. 

19.  Statement  must  be  Express. — The  statement  should  be 
expressly  as  a  counter  claim;  for  if  it  is  only  in  the  form  of  a  defense 
to  the  action,  the  defendant  may  lose  the  benefit  of  affirmative  relief. 
Davidson  v.  Remington,   12  How.  Pr.  310;    Bates  v.  Rosekrans,  23 
Id.  89;  compare  Burrall  v.  De  Groot,  5  Duer,  379. 

20.  Unliquidated  Claims. — So,  unliquidated  claim  for  damages 
is  not  the  subject  of  off-set,  legal  or  equitable.    Ricketson  v.  Richardson, 
19  Cal.  331;  Mcdougal  v.  Maguire,  35  Cal.  274;  Schubart  v.  Harteau, 
34  Barb.  447;  Mayor  etc.  of  N.Y.  v.  Mabie,  13  N.F.  151;  Gage  v. 
Angell,  8  How.  Pr.  335. 

21.  Tort. — A  counter  claim  sounding  in  tort  cannot  be  relied  on. 
The  defendant  cannot  recover  upon  it  as  upon  a  contract.     Mayor  etc. 
of  N.Y.  v.  Parker  Vein  Steamship  Co.,   12  Abb.  Pr.  300;    Piser  v. 
Stearns,  i  Hilt.  86. 

22.  What  it  Admits. — In  considering  a  counter  claim  upon 
demurrer  to  it  for  alleged  insufficiency,  the  facts  alleged  in  the  com- 
plaint, which  are  not  inconsistent  with  the  averments  in  the  counter 
claim,  are  to  be  taken  as  admitted.      Graham  v.  Dunnigan,  4  Abb. 
Pr.  426. 


CHAPTER  V. 

SEVERAL   DEFENSES. 

J\To.  628. 

Demurrer  and  Answer. 
[TITLE.] 

The  defendant  demurs  [or  the  defendants,  naming 
them,  if  only  a  part  of  them  join,  demur]  to  the  first 
[or  other]  count  of  the  complaint,  on  the  following 
grounds: 

First — [State  the  grounds."] 

Second — And  for  answer  to  the  plaintiff's  complaint,  the 
defendant  alleges: 

That,  etc. 


1.  Demurrer  and  Answer. — The  defendant  may  demur  to 
the  whole  complaint,  or  to  one  or  more  of  several  causes  of  action 
stated  therein,  and  answer  the  residue,  or  may  demur  and  answer  at 
the  same  time.  (Cal.  Pr.  Ac/,  §42;  N.Y.  Code,  §  151;  People  v. 
McClellan,  31  'Cal.  101;  Clarkson  v.  Mitchell,  3  E.  D.  Smith,  C.P.R. 
269.)  This  however  does  not  justify  the  mixing  of  law  and  fact  in  the 
same  answer.  (Brooks  v.  Douglass,  32  CaL  208.)  But  he  cannot 
demur  to  part  of  an  entire  cause  of  action,  and  answer  the  residue.. 
(Ingraham  v.  Baldman,  12  Barb.  10;  affirmed  9  N.Y.  45;  Gassett  v. 
Crocker,  10  Abb.  Pr.  133;  Struver  v.  Ocean  Ins.  Co.,  16  How.  Pr.. 
422;  Munn  v.  Barnum,  12  Id.  563;  i  Abb.  Pr.  281;  Spellman  v. 
Weider,  5  How.  Pr.  5;  Slocum  v.  Wheeler,  4  Id.  373;  S.C.,  3  Code  R. 
59;  or  to  the  same  matter,  Munn  v.  Barnum,  i  Abb.  Pr.  281.) 
This  is  similar  to  the  rule  in  chancery.  (Clarke  v.  Phelps,  6  Johns.  Ch. 

49 


77O  FORMS   OF   ANSWERS. 

214;  Bruen  v.  Bruen,  4  Edw.  640;  Souzer  v.  De  Meyar,  2  Paige,  574; 
Jarvis  v.  Palmer,  n  Id.  650;  Spoffard  v.  Manning,  6  Id.  383.)  A 
demurrer  to  a  part  of  a  bill,  followed  by  an  answer  as  to  the  rest,  is  not 
deemed  overruled  or  withdrawn.  (Pierpont  v.  Fowle,  2  Woodb.  &  M. 
23.)  When  the  objection  must  be  taken  by  demurrer,  when  by 
answer,  see  Brainard  v.  Jones,  n  How.  Pr.  R.  569. 

2.  Objections,  how  Taken. — Defects  which  appear  on  the  face 
of  the  complaint  must  be  objected  to  by  demurrer,  or  they  are  waived, 
and  cannot  be  objected  to  by  answer;  so  with  a  defect  of  parties.    (Cat. 
Pr.  Act,  §  45;  Zabriskie  v.  Smith,  13  N.  Y.  322.)     And  the  same  cause 
of  action  cannot  be  demurred  to  and  answered   at  the  same  time. 
(Slocum  v.  Wheeler,  4  How.  Pr.  373;    Spellman  v.  Weider,   5  How. 
Pr.  5;    Munn  v.  Barnum,   i  Abb.  Pr.  281;    Ingraham  v.  Baldwin,  12 
Barb.  9;  Clark  v.  Phelps,  6  Johns.  Ch.  214;  Bruen  v.  Bruen,  4  Edw. 
640;  Souzer  v.  Demeyer,  2  Paige,  574.)      As  the  answer  overrides  the 
demurrer.      (Jarvis  v.  Palmer,  n  Id.  650;  Spofford  v.  Manning,  6  Id. 
383.)     Nor  will  the  Court  allow  a  party  to  withdraw  his  answer  and 
demurrer.      (Finch  v.  Pindon,   19  Abb.  Pr.  96.)      But  the  defendant 
may  demur  to  one  count  and  answer  to  the   other.      (Ingraham  v. 
Baldwin,  12  Barb.  9.)     An  objection  to  the  jurisdiction  of  the  court, 
and  that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action,  can  be  taken  at  any  time.     Col.  Pr.  Act,  §  45. 

3.  Several  Modes   of  Defense. — It  is  an  established  and 
universal  rule  of  pleading  in  chancery,  that  a  defendant  may  meet  a 
complainant's  bill  by  several  modes  of  defense — he  may  demur,  answer, 
and  plead  to  different  parts  of  the  bill;  so  that  if  a  bill  for  discovery 
and  relief  contain  proper  matter  for  the  one,  and  not  for  the  other, 
the  defendant  should  answer  the  proper,  and  demur  to  the  improper 
matter;  and  if  he  demur  to  the  whole,  the  demurrer  will  be  over- 
ruled.    5  Johns.   Ch.  186;  i  John.   Cas.  433;    Livingston  v.  Story,  9 
Pet.  632. 

4.  What  Answer  Waives. — An  answer  and  demurrer  may 
be  interposed  at  the  same  time.     But  filing  an  answer  is  a  waiver  of 
the  demurrer  previously  interposed;  (De  Boom    v.  Priestly,   i    Cal. 
206;  Pierce  v.  Minturn,  Id.  470;  Brooks  v.  Minturn,  Id.  481;    Bibend 
v.  Kreutz,  20  Id.  109;  Hodgson  v.  Marine  Ins.  Co.,  i  Cranch  C.  Ct. 
569;  Irwin  v.  Henderson,  2  Id.  167;)  and  of  irregularities  previously 


SEVERAL   DEFENSES.  77  I 

set  up  in  demurrer.  (Bell  v.  Railroad  Co.,  4  Wall.  U.S.  598.)  It  is 
also  a  waiver  of  alleged  error  as  to  change  of  parties  by  substituting 
one  defendant  for  another  without  notice.  Smith  v.  Curtis,  7  Cal.  584. 


No.  629. 

Several  Defenses,   and  a  Connter  Claim. 
[TITLE.] 
The  defendant  answers  to  the  complaint: 

First — To  the  first  claim: 

I.  That  no  allegation  in  the  first  article  thereof  is 
true. 

II.  [That  as  to  the  second  article  thereof,  he  has  no 
knowledge  or  information  sufficient  to  form  a  belief 
as  to  the  truth  of  the  same.] 

Second — To  the  second  claim: 

That  the  note  mentioned  therein  is  not  his  note. 

Third — To  the  third  claim: 

1.  For  a  first  defense: 

I.  That  it  was  a  part  of  the  agreement  referred  to  in 
the  complaint,  that  the  plaintiff  should  not  sell  goods 
for  any  other  person  than  the  defendant. 

II.  That  the  plaintiff,  during  the  period  of  his  service 
mentioned  in  the  complaint,  sold  sundry  goods  for  one 
B.  S.,  and  for  other  persons  whose  names  are  unknown 
to  the  defendant,  without  the  defendant's  consent. 

2.  For  a  second  defense. 

That  he  has  fully  paid  the  plaintiff  for  his  services. 


772  FORMS    OF    ANSWERS. 

Fourth — For  a  counter  claim: 

I.  That  between  the day  of ,  18 . . , 

and  the  ....  day  of ,  1 8 . . ,  the  plaintiff  re- 
ceived from  D.  A dollars,  'for  the  use  of  the 

defendant. 

III.   That  he  has  not  paid  the  same. 

Wherefore*  the   defendant   demands    judgment    for 

dollars,   with  interest  from   the  ....  day  of 

,  18... 


5.  Cross  Complaint. — A  cross  complaint  bears  a  close  resem- 
blance to  a  counter  claim.  The  distinction  is  subtle,  but  is  none  the 
less  definite.  The  cross  complaint  brings  in  more  comprehensive  matter 
than  a  counter  claim,  and  includes  any  just  cause  of  action  as*  a  set-off 
to  the  plea  of  plaintiff.  When  the  answer  contains  a  cross  complaint, 
a  reply  is  necessary,  in  default  of  which  all  matters  alleged  in  cross 
complaint  will  be  taken  as  confessed.  Such  replication  is  not  necces- 
sary  to  a  counter  claim.  Herold  v.  Smith,  34  Cal.  122. 


[TITLE.] 


No.  630. 

Several  Defenses — Another  Form. 


The  defendant   [or  defendants  severally,   each  for 
himself],  answers  to  the  complaint:   « 

' 
First — For  a  first  defense: 

I.  As  to  the  first  cause  of  action  set  forth  in  the 
complaint,  that  no  allegation  thereof  is  true. 

II.  That  on,  etc.   \Set  out  defense^ 

Second — For  a  second  defense: 

As  to  the  second  cause  of  action  set  forth  in  the  com- 
plaint, the  defendant  alleges:'  \Setforth  defense^ 


SEVERAL    DEFENSES.  773 

Third — For  a  third  defense: 

And  by  way  of  counter  claim  [or  set-off,  or  cross 
complaint]  to  the  [first]  cause  of  action  set  forth  in  the 
complaint,  the  defendant  alleges:  \Setfortk  a  cause  of 
action  against  the  plaintiff I\ 


1.  Commencement  and  Conclusion. — It  is  proper  that  each 
defense  should  indicate  distinctly,  by  fit  and  appropriate  words,  where 
it  commences  and  where  it  concludes.  (Lippencott  v.  Goodwin,  8 
How.  Pr.  242;  Benedict  v.  Seymour,  6  Id.  298.)  But  no  formal  com- 
mencement or  conclusion  is  prescribed.  Bridge  v.  Payson,  5  Sandf.  210. 

8.  Each  Defense  must  be  Complete. — One  defense  cannot 
refer  to  another  in  the  same  answer  for  support.     (Xenia  Branch  Bank 
v.  Lee,  2  Bosw.  694;    S.C.,  7  Abb.  Pr.  372;    Spencer  v.  Babcock,  22 
Barb.  326.)     But  it  was  held  in  (Rice  v.  O'Connor,  10  Abb.  Pr.  R. 
362),  that  several  defenses  in  one  statement  is  not  bad  on  demurrer. 
Upon  a  demurrer  to  a  distinct  defense,  stated  separately  in  an  answer, 
no  resort  can  be  had  to  other  portions  of  the  answer  to  sustain  such 
defense;  for  each  defense  must  be  complete  in  itself.     (Siter  v.  Jewett, 
33  Cal.  92;    7  Abb.  Pr.  372;    10  Id.   246;  4  Bosw.   391;    Jackson  v. 
Van  Slyke,  44  Barb.  116.)     One  separate  defense,  if  defective  in  any 
material  averment,  cannot  be  aided  by  the  averments  of  another  sepa- 
rate defense.     Catlin  v.  Pedrick,  17  Wis.  88. 

9.  Each  Defense  Specific. — When  the  complaint  contains  more 
than  one  cause  of  action,  the  answer  should  indicate  to  which  cause  of 
action  each  defense  is  interposed.     (Kneedler  v.  Sternbergh,  10  How. 
Pr.  67.)     If  the  substance  of  the  defense  clearly  shows  to  which  cause 
of  action  it  is  addressed,  it  is  sufficient  on  demurrer.     Willis  v.  Taggard, 
7  How.  Pr.  433. 

10.  Issues  on  Several  Defenses. — If  one  of  several  pleas  of 
a  defendant  going  to  the  whole  cause  of  action  is  sustained,  it  bars  re- 
covery by  the  plaintiff,  notwithstanding  some  other  issues  may  be 
found  in  favor  of  the  plaintiff.     (Curtis  v.  Jones,  i  How.  App.  Cases, 
137.)     What  judgment  should  be  rendered  when  one  of  two  pleas  is 
found  for  the  plaintiff,  and  the  other  for  the  defendant,  see  Dorsey  v. 
Chenault,  2  Crunch  C.  Ct.  316;  Kerr  v.  Force,  3  Id.  8. 


774  FORMS    OF    ANSWERS. 

11.  Joint  Answer. — A  joint  answer  to  a  bill  in  chancery,  if  sworn 
to  by  all  the  parties,  is  sufficient;  a  joint  and  several  form  is  not  indis- 
pensable.    (Davis  v.  Davidson,  4  McLean,  136.)     Where  a  joint  answer 
of  several  defendants  denies  an  allegation  in  the  complaint  which  the 
plaintiff  must  prove  to  establish  his  cause  of  action  against  some  of  the 
defendants,  but  which  he  need  not  prove  to  entitle  him  to  recover 
against  the  others,  the  answer  raises  material  issue  for  the  defendants 
as  to  whom  the  plaintiff  must  prove  such  allegation.     (Bank  of  Coopers- 
town  v.  Corlies,  i  Abb.  Pr.  R.  (N.S.)  412.)     Where  a  plea  states  that 
the  defendants  c*ne  and  defend,  etc.,  it  will  be  construed  that  all  de- 
fendants are  joined.     Kerr  v.  Swallow,  33  ///.  379. 

12.  Must  be  Consistent. — Several  defenses  may  be  set  up  in 

an  answer  (Cal.  Pr.  Act,  §  49),  but  if  they  are  contradictory,  it  is  bad. 
(Bell  v.  Brown,  22  Cal.  671;  Hopper  v.  Hopper,  n  Paige,  46.)  A 
sworn  answer  must  be  consistent,  and  not  deny  in  one  sentence  what 
it  admits  in  another  sentence.  (Kuhland  v.  Sedgwick,  17  Cal.  123; 
Hensley  v.  Tartar,  14  Cal.  508;  Robinson  v.  Stewart,  10  N.Y.  189; 
Storer  v.  Coe,  2  Bosw.  662;  Manice  v.  N.Y.  Dry  Dock  Co.,  3  Edw. 
Ch.  R.  146;  Willett  v.  Metropolitan  Ins.  Co.,  2  Bosw.  678;  .9  Abb.  Pr. 
444.)  Several  defenses,  inconsistent  with  each  other,  may,  under 
proper  circumstances,  be  set  up  in  a  verified  answer.  (Bell  v.  Brown, 
22  Cal.  671.)  But  where  an  answer  is  susceptible  of  being  construed 
to  contain  either  of  two  defenses,  one  of  payment,  and  the  other  of 
counter  claim,  it  should  be  construed  as  setting  up  only  the  defense  of 
payment  and  requiring  no  reply.  (Burke  v.  Thorne,  44  Barb.  363.) 
As  to  inconsistencies  in  the  answer,  see  (Hollenbeck  v.  Clow,  9  How. 
Pr.  289;  Lansingh  v.  Parker,  Id.  288;  Stiles  v.  Comstock,  Id.  48.) 
The  inconsistent  defenses  which  are  allowed  to  be  pleaded  in  a  verified 
answer,  are  not  such  as  require  in  their  statement  a  direct  contradiction 
of  any  fact  elsewhere  directly  averred.  They  are  those  in  which  the 
inconsistency  arises  rather  by  implication  of  law,  being  in  the  nature 
of  pleas  of  confession  and  avoidance,  as  contradistinguished  from  denials 
where  the  party  impliedly  or  hypothetically  admits,  for  the  purpose  of 
that  particular  defense,  a  fact  which  he  notwithstanding  insists  does  not 
in  truth  exist.  (Bell  v.  Brown,  22  Cal.  671.)  If  no  objection  be  taken 
to  an  answer,  by  a  motion  to  strike  out,  or  by  demurrer  which  sets  np 
inconsistent  defenses,  defendant  may  on  the  trial  rely  on  any  one  of 
such  defenses.  Klink  v.  Cohen,  13  Cal.  623;  Uridias  v.  Morrell,  25 
Cal.  35. 


SEVERAL    DEFENSES.  7,75 

13.  Prayer    in   Answer. — In  an  action  to  recover  personal 
property,  or  to  obtain  the  value  of  the  property  on  judgment  of  dis 
missal  against  the  plaintiff  for  failure  to  appear,  the  answer  must  con- 
tain some  allegation  or  prayer  relative  to  the  change  of  possession  from 
defendant  to  plaintiff.     (Gould  v.  Scannell,  13  Cal.  430.)    A  formal 
prayer  is  not  necessary  in  an  answer,  when  no  counter  claim  is  set  up. 
Bendit  v.  Annesley,  42  Barb.  192. 

14.  Separate  Answer. — In  actions  against  several  defendants, 
each  may  answer  separately.     (2  Saund.  PI.  and  Ev.  18-19.)     But  dila- 
tory defenses  must  be  common  to  all.     (Hurley  v.  Sec<ffd  Bldg.  Assn., 
1 5  Alb.  Pr.  206.)     Against  several  executors,  those  served  first,  or  who 
appear  first,  may  answer  for  estate.     Salters  v.  Pruyn,  15  Abb.  Pr.  224. 

15.  Several  Defenses. — The  defendant  may  set  forth  by  answer 
as  many  defenses  and  counter  claims  as  he  may  have.     They  shall  each 
be  separately  stated,  and  the  several  defenses  shall  refer  to  the  causes 
of  action  which  they  are  intended  to  answer,  in  a  manner  by  which 
|hey   may   be   intelligibly   distinguished.     (Cal.  Pr.  Act,  §  49;  N.Y. 
Code,  §  150;  Bennett  v.  Leroy,   14  Haw.Pr.   178;  5  Abb.  Pr.   55;  6 
Duer,  683.)     Separate  allegations  of  matters  in  avoidance  are  admissi- 
ble in  connection  with  the  general  denial.     Kellogg  v.  Baker,  1 5  Abb. 
Pr.  286. 

16.  Several  Demands — Set-Off! — Several  demands  against  the 
plaintiff,  which  are  available  to  the  defendant  as  a  set  off,  may  be 
pleaded  in  one  defense,  each  being  separately  described.     (Ranney  v. 
Smith,  6  How.  Pr.  420.)     It  would  seem  to  be  otherwise  of  counter 
claims. 

17.  Title. — Title  of  a  cause  is  not  part  of  a  plea.     Bank  of  Co- 
lumbia v.  Ott,  2  Cranch  C.  Ct.   529;   Bank  of  Columbia  v.  Jones, 
Id.  516., 


FORMS  OF  ANSWERS — SUBDIVISION  FIRST. 

In  Actions  for  Debt. 


CHAPTER  I. 

ANSWERS    ON    ACCOUNTS. 

JVo.   631. 

Plea  of  an  Account. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  after  the   said   dealings  in  said  complaint 
named,  and  before  the  commencement  of  this  action,  the 
said  A.  B.  and  C.  D.  came  to  a  mutual  accounting  touch- 
ing the  several  matters  and  things  in  said  complaint 
mentioned. 

II.  That  on  the  said  accounting,  there  was  found 
due  from  the  said  A.  B.  to  the  said  C.  D dol- 
lars, as  a  final  balance  upon  said  mutual  dealing  and 
matters  between  the  said  A.  B.  and  C.  D. 

III.  And  the  said  C.  D.  avers  that  the  said  stated 
account  is  just  and  true. 

1.  Advances. — In  an  action  by  a  commission  merchant  to  recover 
balance  of  an  account,  principally  for  advances,  defendant  set  up  an 
agreement  not  to  sell  the  goods  consigned  below  a  certain  price,  and 


ON  ACCOUNTS.  777 

a  violation  by  the  plaintiff  of  such  agreement,  by  which  defendant  was 
damaged  for  a  greater  amount  than  the  sum  sued  for:  the  plea  was  in- 
sufficient for  not  stating  when  the  agreement  was  made.  Grimes  v . 
Reese,  30  Ga.  330. 

2.  Adjustment  and  Settlement. — Adjustment  and  settlement 
of  an  account  must  be  specially  averred,     (Parker  v.  Lowell,  1 1  Gray 
(Mass.)  353.)     It  is  not  proper  to  frame  an  answer,  as  responsive  to  a 
bill  of  particulars.     Scovell  v.  Howell,  2  Code  R.  33;  Kreiss  v.  Selig- 
man,  8  Barb.  439. 

3.  Denial  of  Mistakes  or  Errors. — That  there  are  no  such 
mistakes  and  errors  in  the  stating  of  the  said  account,  in  manner  and 
form  as  the  said  plaintiff  hath  in  his  said  petition  alleged.     On  sur- 
charging and  falsifying  an  account  stated,  the  mistake  or  error  should 
be  distinctly  charged.     Stoughton  v.  Lynch,  2  Johns.  Ch.  209;  Ley- 
craft  v.  Dempsey,  15  Wend.  83. 

4.  Denial  of  Mutual  Dealings. — That  there  are  no  such  mu- 
tual dealings  and  accounts  between  the  said  plaintiff  and  defendant,  in 
manner  and  form  as  the  said  plaintiff  hath  in  his  said  petition  alleged. 
By  mutual  account,  is  meant  the  mutual  receipt,  one  from  the  other, 
of  something  of  value,  other  than  money.     The  payment  of  money  does 
not,  in  general,  make  an  account  mutual.     See  Vol.  i.,  pp.  374-5. 

5.  On  Information  and  Belief. — When  the  action  is  upon  an 
account,  and  defendant  in  his  answer  avers,  in  the  form  of  reasons  for 
refusing  payment  when  the  account  was  presented  to  him  before  suit, 
that  the  principal  portion  was  composed  of  items  for  printing  done  for 
clients,  for  which  he  never  became  personally  bound,  and  that  the  por- 
tion for  which  he  was  personally  liable  "  has,  to  the  best  of  his  know- 
ledge and  belief,"  been  paid  and  satisfied,  and  therefore  he  pleads  pay- 
ment of  the  same:     Held,  that  this  is  in  substance  a  denial  of  indebted- 
ness for  a  portion  of  the  account,  and  a  plea  of  payment  for  the  bal- 
ance; and  that  it  is  in  effect  an  admission  as  to  that  balance  of  an 
original  liability,  and  throws  the  burden  of  establishing  payment-upon 
the  defendant.     Caulfield  v.  Sanders,  17  Cal.  569. 

6.  Overcharge. — That  items   of    an  account   stated   are   over- 
charged, must  be  specially  pleaded.     (Terry  v.  Sickles,  13  Cal.  427.) 
The  proper   mode  of  raising  an   objection   to  the   amount  of  the 
plaintiff's  claim,  is  by  answer.     Moran  v.  Anderson,  i  Abb.  Pr.  288. 


FORMS    OF    ANSWERS. 

7.  Partnership  Account. — A  denial  by  one  of  the  defendants 
in  suit  on  a  partnership  account,  stating  that  "  he  never  was  a  co-part- 
ner" is  sufficient  to  form  an  issue.     Corning  v.  Haight,  i  Code  R.  72. 

8.  Several  Defenses. — In  an  action  to  recover  many  items  of 
demand,  defendant  may  plead  one  defense  to  some  of  the  items,  and 
another  defense  to  others.     Loftgworthy  v.  Knapp,  4  Abb.  Pr.  115. 

9.  Statute  of  Limitations. — To  suit  on  an  account,  defendant 
averred  that  each  and  every  item  of  varied  account  prior  to  the  loth 
day  of  March,  1859,  is  barred  by  time;  and  he  pleads  and  relies  upon 
the  Statute  of  the  State  of  California,  entitled  'An  Act  Defining  the  Time 
of  Commencing  Civil  Actions/  approved  April  22d,  1850,  in  bar  of 
an  averment  of  a  conclusion  of  law:  Held,  that  a  plea  of  the  Statute 
of  Limitations  must  aver  the  facts  which  bring  the  demand  within  the 
operation  of  the  statute,  as  that  the  alleged  cause  of  action   has  not 
accrued  within  certain  designated  years  previous  to  filing  the  complaint. 
(Caulfield  v.  Sanders,  17  Cal.  569.)     When  the  account  is  not  a  mu- 
tual one,  the  Statute  of  Limitations  bars  each  item  of  the  same,  two 
years  after  its  delivery.     Adams  v.  Patterson,  35  Cal.  122 

10.  What  must  be  Shown. — To  suit  on  an  account,  the  plea 
must  aver  the  facts  which  bring  the  demand  within  the  operation  of 
the  Statute;  (Caulfield  v.  Sanders,  17  Cal.  569;  Lick  v.  Diaz,  30  Cal. 
65;)  and  not  state  matters  of  law.     Boyd  v.  Blankman,  29  Id.  20. 


CHAPTER  II. 

ANSWERS    ON     AWARDS. 

No.  632. 

Invalidity  of  an   Award. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  by  the  term  of  the  agreement  referred  to  in  the 
complaint,  the  arbitrators  were  to  hear  the  evidence  and 
arguments  of  both  parties  at  meetings  called  upon  notice 
to  both,  but  that  they  refused  to  hear  the  evidence 
offered  by  defendant,  and  failed  and  refused  to  give  de- 
fendant notice  of  the  said  meetings,  or  any  of  them. 

Wherefore,  etc.  [  Judgment,  may  be  demanded,  set- 
ting aside  the  award,  if  desired.~\ 

1.  Denial  of  Award. — That  the  said  arbitrators  [or  umpire]  did 
not  make  and  publish  any  award  [or  the  award  alleged  in  the  com- 
plaint].     If  the  defendant  relies  upon  an  irregularity  in  the  award,  of  an 
excess  of  power  on  the  part  of  the  arbitrators,  it  is  better  to  allege  the 
act  expressly. 

2.  Denial  of  Parol  Submission. — That  he  did  not  agree  or 
promise  as  alleged.     It  was  held  at  common  law  that  where  a  party 
desires  to  question  the  legal  effect  of  a  submsssion  or  award,  he  must 
set  it  out  and  demur.     Fidler  v.  Cooper,  19  Wend.  285. 

3.  Denial  of  Performance  by  Plaintiff! — That  the  defend- 
ant did  not  perform  the  award  upon  his  part,  but  on  the  contrary  omitted 
to  [set  forth  his  omission]. 


780  FORMS    OF    ANSWERS. 

4.  Denial  of  Revocation  by  Defendant. — That  he  did  not 
revoke  the  powers  of  the  arbitrators,  as  alleged  in  the  said  complaint. 

5.  Performance   by  Defendant. — That  the  defendant  duly 

performed  the  award  on  his  part,  and  upon  the  ....  day  of , 

1 8 . .  [ state  what  was  done]. 


CHAPTER  III. 

ANSWER    ON    EXPRESS    PROMISES. 

No.  633. 

Denial  of  Promise. 
[TITLE.] 

The  defendant  answers  to  the  complaint  and  denies: 

That  he  promised  or  agreed  as  alleged  in  the  said 
complaint,  or  that  he  made  any  agreement. 

1.  Land  Conveyed. — In  an  action  for  the  purchase  money  of 
land  conveyed  by  deed,  without  covenants,  want  of  title  in  the  vendor 
is  no  defense,  unless  the  vendee  has  been  evicted.  Fowler  v.  Smith, 
2  Cal.  39. 


CHAPTER  IV. 

ANSWER    FOR    GOODS    SOLD    AND    DELIVERED. 

No.  634. 

i.     Controverting   Plaintiff's   Title. 
[TITLE..] 

The  defendant  answers  to  the  complaint. 

That  no  part  of  the  goods,  wares,  and  merchandise 


TOR   GOODS    SOLD    AND    DELIVERED.  781 

in  the  complaint  mentioned  was  the  property  of  plaintiffs 
when  sold  to  defendant;  but  the  same  then  was  the 
property  of  one  A.  B. 


No.  635. 

ii.     The  Same — Reducing  Value,  and  Pleading  Payment. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 
I.   That  he  promised  to  pay  the  plaintiff 


dollars  only. 

II.     That  he  has  paid  the  said  sum  to  the  plaintiff. 


1.  Conclusion  of  Law. — If  the  complaint  avers  the  sale  and 
delivery  to  defendant  of  goods,  and  the  value  of  the  same,  an  answer 
which  denies  the  indebtedness,  but  does  not  deny  the  facts,  the  sale 
and  delivery,  and  amount  of  goods,  does  not  raise  an  issue,  as  it  only 
denies  the  legal  conclusion  resulting  from  the  facts.     Lightner  v.  Men- 
zell,  35  Cal.  452;    Curtis  v.  Richards,  9  Cal.  33;  Wells  v.  McPike,  21 
Id.  215;    McMurray  v.  Gilford,  4  Hoiv.  Pr.  14;   Pierson  v.  Cooley,  I 
Code R.  91;    Edson  v.  Dillaye,  8  How  Pr.  273;   Flammer  v.  Kline,  9 
How.  Pr.  216;    Drake  v.  Cockroft,  10  How.  Pr.  277;  i  Abb.  Pr.  R. 
263;  Cal.  St.  Tel.  Co.  v.  Patterson,  i  Nev.  151. 

2.  Conjunctive  Denials. — Where  the  complaint  verified  avers 
that  defendant  is  indebted  to  plaintiff  for  goods,  wares,  and  merchan- 
dise, sold  and  delivered,  in  the  sum  of  eight  hundred  and  twenty-eight 
dollars  and  sixteen  cents,  and  the  answer  denies  that  the  defendant  is 
indebted  in  the  sum  of  eight  hundred  and  twenty  eight  dollars  and  six- 
teen cents,  the  denial  is  insufficient.     Higgins  v.  Wortell,  18  Cal.  330; 
Woodworth  v.  Knowlton,  22  Id.  164. 

3.  Statute    of  Limitations. — When   the  complaint  states   a 
cause  of  action  for  goods  sold  and  delivered,  and  a  bill  of  items  is 
annexed  to  the  same  as  an  exhibit,  with  the  date  of  each  item,  an  answer 
which  refers  to  the  exhibit  and  avers  that  the  last  item  only  is  within 


782  FORMS    OF    ANSWERS. 

two  years  previous  to  the  commencement  of  the  action,  and  that,  except 
as  to  the  last  item  "  no  action  has  accrued  to  said  plaintiff  by  reason  of 
the  matter  mentioned  and  set  forth  in  said  complaint  at  any  time  within 
two  years  next  preceding  the  commencement  of  this  action,"  is  a 
good  answer  of  the  Statute  of  Limitations,  to  all  the  items  except  the 
last.  Adams  v,  Patterson,  35  Cal.  122. 

4.  Accord  and  Satisfaction. — To  a  declaration  for  goods 
sold  and  delivered,  claiming  £120,  the  defendant  pleaded:  (i)  never 
indebted;  (2)  "and  for  a  further  plea,"  that  after  the  commencement  of 
the  suit,  and  after  the  last  pleading,  it  was  agreed  that  the  plaintiff  should 
accept  from  the  defendant  £60,  in  settlement  of  the  debt  sought  to  be 
recovered  in  the  action;  and  the  defendant  paid,  and  plaintiff  accepted 
£60  in  satisfaction  and  discharge  of  said  debt.  On  demurrer  to  the 
second  plea,  held,  that  the  plea,  being  pleaded  generally,  must  be  taken 
to  be  pleaded  to  the  whole  cause  of  action;  and  as  it  alleged  the  pay- 
ment after  action  brought  to  have  been  in  satisfaction  of  the  debt  only, 
it  was  bad  for  leaving  unanswered  any  damages  to  which  the  plaintiff 
might  be  entitled.  Ash  v.  Poupeville,  Law,  Rep.  3  Q.  B.  86. 


No.  636. 

iii.     The  Same — Agreement  to   Take  Note  in  Part  Payment. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  said  goods  were  sold  and  delivered  to  said 
defendant  by  said  plaintiff,  on  an  express  agreement, 
by  and  between  them,  that  said  plaintiff  should  accept 
in  payment  therefor,  a  promissory  note  for  the  sum  of 

dollars,  drawn  by  this  defendant,  and  dated 

on  the  ....  day  of ,  1 8  . .  [with  an  approved 

indorser]. 

II.  That  on  the  ....  day  of ,  1 8 . . ,  and  before 

this  action,  the  defendant  tendered  to  the  plaintiff  such 
a  note  as  above  described,  indorsed  by  one  who  was  then 


FOR    GOODS   SOLD    AND    DELIVERED.  783 

and  still  is ,  in  good  credit  and  ability,  and  an 

approved  indorser,  and  is  still    ready   and   willing   to 
deliver  the  same. 

III.    That  the  defendant  refused  to  receive  the  same. 


5.  Credit  not  Expired. — In  an  action  for  goods  sold,  an  answer 
admitting  the  purchase  of  the  goods,  but  averring  that  they  were  pur- 
chased on  a  credit  not  expired,  is  not  a  statement  of  new  matter  con- 
stituting a  defense,  but  merely  a  special  denial  of  the  plaintiffs'  allega- 
tion "  that  defendant  is  now  indebted  to  the  plaintiffs,"  a  denial  of  the 
contract  set  up  by  the  plaintiffs.     Gilbert  v.  Cram,  12  How.  Pr,  455. 

6.  Sufficient  Answer. — The  complaint  stated  a  cause  of  action 
for  goods  sold,  and,  in  addition,  with  a  view  to  meet  a  probable  defense 
of  payment  based  upon  the  giving  of  certain  notes  by  defendant  and  a 
recept  in  full  by  plaintiff,  stated  the  making  of  the  notes  and  receipt, 
and  alleged  facts  attending  the  transaction,  which,  if  true,  avoided  its 
effect  as  payment,  by  reason  of  fraud  and  misrepresentation  on  the  part 
of  defendant.     The  answer  admitted  the  original  demand,  and  averred 
payment  by  the  notes  referred  to  in  the  complaint,  but  did  not  deny  in 
proper  form  the  allegations  in  the  complaint  respecting  the  fraud  of 
defendant  in  the  transaction.    The  case  was  submitted  in  the  pleadings, 
and  plaintiff  had  judgment.     Held,  that  the  judgment  was  erroneous; 
that  the  allegations  of  the  complaint  in  reference  to  the  transaction, 
claimed  to  operate  as  payment,  were  not  material  allegations  requiring 
a  denial,  and  were  not  therefore  admitted  by  the  failure  of  defendant 
to  deny  them.     Canfield  v.  Tobias,  21  Cal.  349. 


No.  637- 

iv.     The  Same — Articles  Furnished  Defendant's  Wife  not  Necessary. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.    That  the  articles  mentioned  therein  were  furnished 
without  his  consent. 


784  FORMS    OF     ANSWERS. 

II.    That  the  same  were  not  necessary  for  his  wife 
\iiot  suited  to  her  station  in  life]. 


7.  When  not  Liable. — A  wife  who  without  cause,  and  against 
her  husband's  will,  refuses  to  live  with  him,  cannot  bind  him  for  neces- 
saries to  a  third  party  who  knows  that  she  is  not  living  with  her  hus- 
band, and  who  sells  to  her  without  further  inquiry.  Brown  v .  Mud- 
gett,  40  Vt.  68. 


CHAPTER  V. 

ANSWER    ON    GUARANTY. 

No.  638. 

i.     General  Form. 
[TITLE.] 

A.B.  and  C.D.,  two  of  the  defendants  in  the  above 
entitled  action,  separately  answering  the  complaint  of 
the  plaintiff  in  this  said  action: 

I.  Deny  that  they,  or  either  of  them,  made  the  writ- 
ten guaranty  set  forth  in  the  said  complaint. 

II.  They  deny  that  the  [ale  contained  in  the  barrels] 
mentioned  in  said  complaint  [did  sour  during  its  voy- 
age], or  that  it  was  [unfit  for  use]  when  it  arrived  here. 

Wherefore  defendants,  A.B.  and  C.D.,  pray  to  be 
dismissed  with  their  costs. 


1.  Denial  of  Plaintiff's  Performance. — Denies  that  the 
plaintiff  did  supply  the  goods  to  the  said  A.B.  alleged  in  the  complaint, 
or  any  part  thereof. 


ON    GUARANTY.  785 

JVo.  639. 

ii.     The  Same — Departure  from  Guaranty. 
[TITLE.  | 

The  defendant  answers  to  the  complaint: 

I.  That  the  defendant  did  not  agree  to  be  answer- 
able generally  to  the  plaintiff  for  the  value  of  goods 
sold  to  the  defendant,  but  only  for  goods  to  an  amount 

not  exceeding dollars,  which  limit  the  plaintiff 

exceeded  in  his  alleged  sale. 

2.  Mistake. — In  an  action  upon  contract,  an  answer  which  seeks 
to  set  up  a  mistake  in  the  instrument  embodying  it,  must  state  what 
was  the  actual  agreement,  and  the  mistake  in  reducing  it  to  writing. 
Wemple  v.  Stewart,  22  Barb.  154;  and  see  Barton  v.  Sackett,  3  How. 
Pr.  358;  S.C.,  i  Code  R.  96. 

3.  Rent. — In  an  action  against  sureties,  to  recover  rent,  the  de- 
fendants alleged  in  their  answer  and  proved  that  they  understood  they 
were  to  be  sureties  as  for  a  rent  of  $900,  and  that  the  guarantee  was 
executed  by  them  under  a  mistake  of  facts;  but  it  was  not  averred  in 
the  answer  or  proved  that  the  plaintiff  had  the  same  understanding  of 
the  agreement.    Held,  that  neither  the  matter  set  up  in  the  answer,  nor 
the  proof  was  sufficient  to  authorize  a  reformation  of  the  contract  so  as 
to  conform,  it  to  the  understanding  of  the  defendants.      Lanier  v. 
Wyman,  5  Rob.  147. 


CHAPTER  VI. 

ANSWERS    ON    INSURANCE. 

JVo.  640. 

i.     Denial  of  Policy. 
[TITLE.] 

The  defendants  answer  to  the  complaint: 

I.  That  they  did  not  make  or  deliver  the  policy  of 
insurance  alleged. 

JVo.  641. 

ii.     The  Same — Denial  of  Plaintiff's  Interest. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  plaintiff  did  not  own,  and  had  no  insur- 
able  interest  in  the  said  goods  [or  building,  etc.~\,  at  the 
time  of  the  happening  of  said  loss. 

JVo.  64%. 

iii.     The  Same— Denial  of  Loss. 
[TITLE.] 
The  defendant  answers  to  the  complaint: 

» 

I.   That  the  said  building  was  not  destroyed  [or  in- 


ON    INSURANCE.  787 

jured],  during1  the  term  of  said  insurance  by  [state 
perils],  but  said  loss  occurred  wholly  by  [indicate  the 
except  ed  peril  ] . 


1.  Conditions  in  Policy. — Denial  of  all  liability  on  a  policy, 
on  the  ground  that  the  loss  was  not  from  a  peril  insured  against,  is  a 
waiver  of  proof  of  loss,  required  in  the  policy,  as  also  of  an  allowance 
therein  to  the  insurers  of  sixty  days  in  which  to  pay.  „  A  policy  of 
insurance  on  real  and  personal  property  contained  a  false  warranty  as 
to  incumbrances  on  the  realty;  the  personal  property  was  separately 
valued  and  appraised;  it  did  not  appear  that  said  warranty  was  an 
inducement  to  its  insurance.  Koontz  v.  Hannibal  Savings  and  Ins. 
Co.,  42  Mo.  126. 

Wo.  643. 

iv.     The  Same — Policy  Obtained  by  Misrepresentations.     ' 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

That  the  defendant  was  induced  to  subscribe  the 
policy,  and  become  insurer,  as  alleged  in  the  complaint, 
by  the  misrepresentation  made  by  the  plaintiff  to  the 
defendant  of  a  fact  then  material  to  be  known  to  the 
defendant,  and  material  to  the  risk  of  the  said  policy; 
that  is  to  say  \_state  misrepresentation]. 


2.  Condition  in  Policy. — A  condition  in  a  policy  that  fraud  or 
false  swearing  shall  forfeit  all  claim,  relates  only  to  the  preliminary 
proofs,  and  a  plea  founded  upon  such  condition  must  allege  that  the 
fraud,  etc.,  was  committed  in  those  proofs,  and  that  it  was  committed 
by  the  plaintiff  or  some  party  in  interest.  (Ferris  v.  North  American 
Fire  Ins.  Co.,  i  Hill,  71.)  If  a  policy  of  insurance  contains  a  clause 
that  if  the  assured  keep  gunpowder,  the  same  shall  be  void,  and  the 
complaint  avers  that  the  plaintiff"  faithfully  complied  with  the  terms  of 
the  policy,  and  the  answer  does  not  deny  the  same,  nor  set  up  as  new 


788  FORMS    OF     ANSWERS. 

matter  the  keeping  of  the  gunpowder,  the  fact  cannot  be  insisted  on 
as  a  defense.   Cassacia  v.  Phoenix  Ins.  Co.,  28  CaL  628. 

3.  Fraud  and  False  Swearing. — Upon  the  question  of  fraud 
and  false  swearing  by  the  insured,  so  as  to  deprive  him  in  case  of  a  loss 
of  any  benefit  under  the  contract,  any  discrepancy  found  to  exist  between 
his  sworn  statement  of  his  losses,  and  the  actual  loss,  which  can  reason- 
ably be  accounted  for  on  the  score  of  opinion,  is  entitled  to  no  weight. 
Such  discrepancy  will  be  considered  as  evidence  of  fraud  or  false  swear- 
ing only  when,  it  is  such  as  to  show  a  material  and  intentional  over- 
valuation by  him.    Clark  v.  Phoenix  Ins.  Co.,  36  CaL  168. 

4.  Note. — State  misrepresentations  in  like  manner  in  life  or  acci- 
dental policy.     It  is  not  deemed  necessary  to  give  a  form  for  every 
defense  arising  under  this  class  of  actions.     The  defendant  should  state 
particularly  and  specifically  in  what  respect  the  assessor  had  vitiated  the 
contract  by  fraud  or  mistake;  or  in  what  regard,  or  on  what  account  the 
defendant  had  ceased  to  be  liable  under  the  policy.     Defenses  to  life 
and  accidental  policy  of  insurance  are  not  favored  by  the  courts,  unless 
very  clearly  meritorious. 


No.  644. 

v.     The  Same — Transfer  without  Insurer's  Consent. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

I.  That  it  is  among  other  things  provided  by  said  in- 
surance policy,  that  in  case  of  any  transfer  or  termina- 
tion of  the  interest  of  the  insured,  either  by  sale  or 
otherwise  of  the  property  insured,  without  the  consent 
of  the  company,  the  policy  should  from  thenceforth  be 
void. 

II.  That  after  the  making  of  said  policy,- and  before 
the  loss  alleged,  the  interest  of  the  said  \insured~\  in  said 
\things  insured"]  was  terminated  and  transferred,  and 


ON    INSURANCE.  789 

the  title  thereto  vested  in  said  plaintiff  without  the  con- 
sent of  the  defendants,  whereby  the  policy  became  and 
was  void,  at  the  time  of  said  loss. 


NOTE. — -This  form  and  the  next  are  from  Abbott's  Forms,  Nos.  906 
and  910. 

JVo.  645. 

vi.     The  Same — Unseaivor thine ss  of  Vessel. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

I.  \_Allege  provisions  of  policy,  unless  it  appears  by 
the  complaint  ^\ 

II.  That  at    ,  and  in    the  course  of  said 

voyage,  and  in  reference  to  the  said  voyage,  and  to 
any  damage  which  the  said  ship  sustained  in  the  prose- 
cution thereof,  a  regular  survey  was  had  on  the  .... 

day  of ,  1 8  .  . ,  upon  which  survey  the  said  ship 

was  thereby  declared  unseaworthy,  by  reason   of  her 
being  rotten  [or  state  particulars  showing  a  ground  of 
condemnation   wholly    within    the   provisions   of    the 
policy~\. 


5.  Form. — This   form   was  held  good  in  Griswold  v.  National 
Ins.  Co.,  3  Cow.  96. 

6.  Special  Matter. — In  an  action  of  covenant  on  a  policy  under 
seal,  any  special  matter  of  defense  must  be  pleaded.     (Marine  Ins.  Co. 
v.  Holzson,  6  Crunch,  206.)     As  to  manner  of  pleading  a  want  of  sea- 
worthiness to  an  action  on  a  time  policy,  see  (Jones  v.  Insurance  Co.,  2 

Wall.  jr.  C.  Ct.  278.)     In  an  action  on  a  policy  of  marine  insurance, 


7QO  FORMS    OF     ANSWERS. 

the  defendant's  remedy  to  compel  a  disclosure  by  the  plaintiff  of  the 
number  of  packages,  or  the  quantity  and  nature  of  the  cargo  lost  or  in- 
jured, and  the  items  of  expenses  incurred,  is  by  requiring  a  bill  of  par- 
ticulars, rather  than  by  motion  to  make  the  complaint  more  definite. 
Cockroft  v.  Atlantic  and  C.  Ins.  Co.,  9  Bosw.  (N.Y.)  68 1. 


CHAPTER   VII. 

ANSWERS    ON   JUDGMENTS. 

No.  646. 

i.  |  Denial  of  Judgment. 

[TlTLE.J 

The  defendant  answers  to  the  complaint,  that  there  is 
no  record  of  said  judgment. 

1.  Accord  and  Satisfaction. — A  parol  agreement  to  deliver 
up  a  judgment  with  the  execution  thereon  issued,  "  to  be  satisfied  "  in 
consideration  of  the  settlement  of  and  indemnification  against  a  claim 
which  is  being  made  by  a  third  party,  is  binding,  and  is  a  complete 
defense  to  a  suit  on  the  judgment,  although  the  promise  was  made  to 
and  the  consideration  came  from  but  one  of  the  defendants.  (Cobb  v. 
Cowdery,  40  Vt.)  Where  a  defendant  alleged  in  his  affidavit  of  defense 
an  agreement  to  receive  in  satisfaction  a  smaller  sum  of  money  at  a  time 
sooner  than  the  debt  fell  due,  and  a  tender  to  the  counsel  of  the  cred- 
itors, without  alleging  an  acceptance  by  either  the  plaintiff  or  his  coun- 
sel, it  was  held  that  there  was  no  execution  of  the  accord,  and  no  satis- 
faction, and  that  the  defense  failed.  (Hearn  v.  Kiehl,  38  Penn.  147.) 
A  payment  of  part  of  the  amount  due  upon  a  money  judgment,  under 
an  agreement  that  it  shall  operate  as  a  satisfaction  in  full,  will  not  dis- 
charge the  judgment.  (Deland  v.  Hiett,  27  Cal.  611.)  But  this  rule 
has  been  changed  by  statute,  for  now  by  agreement  between  creditor 
and  debtor  a  less  sum  than  the  whole  amount  may  be  paid  and  received 
in.  full  payment  and  discharge  of  any  indebtedness,  if  such  agreement 
be  clearly  manifested  by  a  receipt  or  instrument  in  writing  signed  by 


ON    JUDGMENTS.  79! 

such  creditor.  (Laws  of  Cal.,  1867-8,  p.  31.)  Before  suit  was  brought, 
the  plaintiffs  agreed  with  their  attorneys  that  they  should  have  one-third 
of  the  judgment  and  costs  as  compensation.  After  judgment  and  execu- 
tion the  plaintiffs  compromised  for  less  than  the  amount  of  the 
judgment,  and  entered  satisfaction  upon  the  record.  Held,  that  the 
attorneys  had  no  lien  on  the  judgment,  and  could  not  disturb  the  satis- 
faction as  entered.  Mansfield  v.  Dorland,  2  Cal.  507;  see  Ex  parte 
Kyle,  i  Cal.  331. 

2.  Another  Action  Pending. — A  plea  to  an  action  on  a  judg- 
ment, alleging  that  the  plaintiff,  at  the  time  of  commencing  the  suit,  was 
seeking  to  enforce  the  collection  of  an  execution  issued  in  the  same 
judgment,  is  a  good  bar  to  the  action.    Yantis  v.  Burdett,  3  Mo.  457. 

3.  Assignment. — Where  a  judgment  against  which  a  right  to 
set  off  another  judgment,  rendered  in  the  same  action,  exists,  is  assigned, 
the  assignee  may  be  brought  into  the  court  upon  a  proceeding  by  peti- 
tion and  motion,  and  will  be  bound  by  an  order  therein  directing  a 
set-off.     Porter  v.  Liscom,  22  Cal.  430. 

4.  Denial  of  Judgment. — A  debt  cannot   be  denied  without 
denying  the  instrument  on  which  it  is  founded.     Hence  a  plea  of  nil 
debet  is  a  bad  plea  in  an  action  founded  on  a  judgment.     (Sneed  v. 
Wester,  8  Wheat.   690;   United  States  v.  Spencer,   2  McLean,  405.) 
If  it  is  desired  to  attack  the  judgment,  the  plea  should  be  nul  tiel  record. 
(Mills  v.  Duryee,  7  Cranch,  481;  Bastable  v.  Wilson,  i  Cranch  C.  Ct. 
124;  Short  v.  Wilkinson,  2  Id.  22;  Armstrong  v.  Carson,  2  Dall.  302; 
Bergen  v.  Williams, '4  McLean,  125;    French  v.  Lafayette  Ins.  Co.,  5 
McLean,  461 .)     On  a  nul  tiel  record,  an  untrue  statement  of  the  circum- 
stances descriptive  of  the  record,  though  unnecessary  to  be  stated  at  all, 
is  fatal,  as  such  a  plea  puts  the  identity  of  the  record  in  question. 
(Lawes  on  Plead.  370;  Whitaker  v.  Branson,  2  Paine,   209.)     Such  a 
plea  brings  before  the  court  the  validity  of  the  judgment,  and  the  de- 
scription of  it  as  given  in  the  declaration.     (Jacquette  v.  Hugunon,  2 
McLean,  119.)     When  the  record  set  forth  in  a  declaration  is  not  the 
foundation  of  the  action,  but  only  matter  of  conveyance  or  inducement, 
nul  tiel  record  is  not  a  good  plea,  for  it  is  no  answer  to  the  whole  count. 
United  States  v.  Little,  3  Cranch  C.  Ct.  251. 

5.  Judgment  for  Costs. — A  judgment  in  favor  of  a  defendant, 
for  costs,  based  upon  a  finding  of  one  of  several  issues  in  his  favor  by 
the  jury,  even  if  erroneous,  is  not  void.     While  unreversed,  it  is  to  be 


792  FORMS    OF     ANSWERS. 

treated,  for  the  purpose  of  set-off,  as  a  valid  judgement.     Porter  v.  Lis- 
com,  22  Cal.  430. 

6.  On    Appeal. — The   pendency  of  a  writ  of  error  might   be 
pleaded  in  abatement,  but  not  in  bar.     The  plea  must  state  that  the 
writ  was  brought  prior  to  the  present  suit,  and  the  requisite  steps  taken 
to  render  it  a  superseded*  to  the  execution.     Jenkins  v.  Pepoon,  2  Johns. 
Cas.  312. 

7.  Payment. — A  plea  of  payment  to  an  action  of  debt,  founded 
on  a  judgment  rendered  in  Kentucky,  containing  an  averment  that  by 
the  law  of  that  State  such  a  plea  to  such  a  declaration  is  good,  puts  in 
issue  the  law  of  Kentucky,  and  should  be  replied  to.     Hutchinson  v. 
Patrick,  3  Mo.  65. 

8.  Set-Off — A  person  may  receive  the  money  due  on  a  judg- 
ment rendered  in  favor  of  himself  and  several  others,  co-plaintiffs,  but 
he  cannot,  without  authority  from  his  co-plaintiffs,  set  off' a  judgment 
due  to  him  and  them  jointly,  against  another  judgment  held  by  the 
defendants  in  such  joint  judgment  against  himself  alone.     Cowen  v. 
Ward,  35  Cal.  195.)     When  judgments  in  different  courts  are  to  be  set 
off,  the  moving  party  must  go  into  the  court  in  which  the  judgment 
against  himself  was  recovered.     (Russell  v.  Conway,  n  Cal.  101.)     A 
judgment  assigned  to  a  sheriff  cannot  be. set  off  against  another  judg- 
ment against  said  sheriff  for  seizing  under  execution  certain  exempt 
property  under  the  effect  of  the  judgment  so  assigned.     (Beckman  v. 
Manlove,  18   Cal.  388.)     Where,  in  the  same  action,  two  judgments 
were  entered,  one  for  the  plaintiff  for  a  certain  sum,  and  one  for  the 
defendant  for  a  less  sum :  Held,  that  defendant  had  a  right  to  set  off  his 
judgment  pro  tanto  against  that  of  the  plaintiff,  and  that  his  right  could 
not  be  defeated  by  any  assignment  by  plaintiff  of  his  judgment  before 
application  of  the  set-off.     (Porter  v.  Liscom,  22  Cal.  430.)     It  is  not 
necessary  that  the  demand  sought  to  be  used  as  a  set-off  should  be  in 
the  form  of  a  personal  judgment.     Hobbs  v.  Duff,  23  Cal.  596. 

9.  Set-Off  in  Equity. — The  jurisdiction  of  a  court  of  equity  in 
relation  to  set-offs  is  more  extensive  than  that  of  common  law  courts; 
and  when  the  defendant  in  one  of  the  judgments  is  insolvent,  and  the 
plaintiff  in  the  other  is  not  the  real  party  in  interest,  but  a  trustee  for 
the  insolvent  defendants  in  the  other  judgment,  a  court  of  equity  will 
decree  a  set-off.     (Hobbs  v.  Duff,  23  Cal.  596.)     Where  the  parties  to 


ON    JUDGMENTS.  793 

two  judgments  are  not  the  same,  a  court  of  common  law  jurisdiction 
cannot  set  off  one  against  the  other;  but  a  court  of  equity  will  look 
beyond  the  nominal  to  the  real  .parties  in  interest,  and  adjudicate  the 
rights  of  the  parties  accordingly.  (Hobbs  v.  Duff,  23  Cal.  596.)  A 
Court  of  equity  will  not  permit  a  cestui  qui  trust,  who  is  insolvent,  to 
enforce  and  collect,  through  his  trustee,  a  judgment  against  a  party  who 
holds  a  just  and  valid  demand  against  the  cestui  qui  trust,  which  he  has 
no  means  of  enforcing  or  collecting  if  a  set-off  is  denied.  (Hobbs  v. 
Duff,  23  Cal.  596.)  An  action  brought  in  a  court  of  equity  to  enforce 
a  set-off  of  one  judgment  against  another,  is  "an  action  upon  a  judg- 
ment or  decree,"  within  the  meaning  of  Section  1 7  of  the  Statute  of 
Limitations,  and  may  be  brought  at  any  time  within  five  years  of  the 
date  of  the  judgment  or  decree.  Id. 

10.  Several  Pleas. — Where  there  are  several  pleas  to  the  con- 
trary, with  the  plea  of  nul  tiel  record,  and  the  parties  go  to  trial,  gener- 
ally it  will  be  presumed  here  that  the  issues  were  respectively  decided 
by  the  proper  tribunal.  Wall's  Administrators  v.  Fife,  37  Penn.  394. 

.  11.  Void  Judgment. — Although  the  existence  of  a  judgment, 
relied  upon  for  the  relief  sought,  is  admitted  by  the  answer,  if  the 
plaintiff  proceeds  to  put  it  in  evidence,  and  it  is  void  upon  its  face,  the 
Court  will  treat  it  as  forming  rib  grounds  for  the  plaintiff's  action.  (Ely 
v.  Cook,  2  Hilt.  406;  S.C.,  9  Abb.  Pr.  366.)  So,  where  by  his  answer, 
in  an  action  upon  a  judgment,  the  defendant  puts  in  issue  the  existence 
of  a  regular,  valid  and  legal  judgment,  any  evidence  tending  to  show 
the  judgment  illegal  or  void  is  competent.  Hence,  under  such  pleadings, 
after  the  plaintiff  has  produced  a  certified  copy  of  the  judgment  record, 
the  defendant  may  prove  the  statute,  a  rule  of  court  (the  judgment 
being  a  foreign  judgment)  showing  the  same  to  be  irregular,  and  a 
certified  copy  of  the  record  showing  an  order  of  that  Court  vacating 
the  judgment  on  the  ground  of  such  irregularity,  although  the  vacation 
was  made  subsequent  to  the  issue  in  the  action.  This  is  competent 
under  a  general  denial,  for  it  shows  that  no  such  judgment  as  the 
plaintiff  has  alleged  in  his  complaint  has  in  reality  existed;  that  it  never 
existed  except  in  form,  and  was  ab  initio  unlawful,  irregular  and  void. 
Kinsey  v.  Ford,  38  Barb.  195. 

12.  When  Debt  Accrued. — This  defense  may  be  pleaded  to  an 
action  on  a  judgment,  founded  on  a  debt  existing  when  the  bankrupt 
filed  his  petition,  but  which  judgment  was  recovered  before  the  dis- 


/94  FORMS    OF    ANSWERS. 

charge  was  granted,  so  that  the  defendant  had  no  opportunity  of  plead- 
ing such  discharge  in  the  prior  suit.  (Dresser  v.  Brooks,  3  Barb.  329; 
Fox  v.  Woodruff,  9  Id.  498;  Johnson  v.  Fitzhugh,  3  Barb.  Ch.  360; 
Clark  v.  Rohing,  3  AT  Y.  216.)  Otherwise  if  the  discharge  might  have 
been  pleaded,  but  was  not  in  the  original  action.  Stewart  v.  Green,  1 1 
Paige,  535. 

No.  647. 

ii.     The  Same — Invalidity  of  a  Foreign  Judgment. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  no  summons  or  copy  of  the  complaint,  or 
either,  was  served  upon  him  in  the  action  mentioned  in 
the  complaint. 

II.  That  he  never  appeared,  in  person  or  by  attorney, 
in  said  action. 


13.  Facts. — Facts  in  opposition  to  the  record  of  a  judgment  ob- 
tained in  one  State,  cannot  be  alleged  to  contradict  the  judgment  in  an 
action  brought  upon  it  in  another  State.     A  judgment  in  one  State  is 
conclusive  between  the  parties  in  another  State.     Field  v.  Gibbs,  Pet. 
C.  Ct.  155. 

14.  Form. — For.  form  of  defense,  or  invalidity  of  a  foreign  judg- 
ment, see  (Long  v.  Long,  i  Hill,  597;  Shumway  v.  Stillman,  6  Wend. 
447;  Starbuck  v.  Murray,  5  Id.  148;  see,  also,  Fiske  v.  Anderson,  12 
Abb.  Pr.  8;  Force  v.  Gower,  23  How.  Pr.  294.)     It  is  not  enough 
merely  to  allege  that  his  domicile  was  elsewhere.    Shumway  v.  Stillman, 
4  Cow.  294. 

15.  Fraud. — In  an    action    on  a   foreign  judgment,  matters  of 
defense,  alleging  fraud  in  the  obtaining  of  that  judgment,  even  if  con- 
ceded to  be  frivolous,  cannot  be  held  irrelevant  so  as  to  be  stricken  out 
under    Section   152    of   the   Code.      Fasnacht  v.  Stehn,   5   Abb.  Pr. 
(N.S.)  338. 


ON    JUDGMENTS.  795 

No.  648. 

iii.     The  Same — Invalidity  of  Judgment  against  Non-Resident. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

I.  That  the  action  in  which  the  supposed  judgment 
against  him  was  alleged  to  have  been  recovered  arose 
upon  an  alleged  contract. 

II.  That  when  the  action  was  commenced,  this  de- 
fendant was  a  non-resident  of  the  State  of  California, 
and  a  resident  of  Illinois. 

III.  That  he   never  appeared  in   that  action,   and 
never  was  personally  served  in  the  State  of  California, 
or  elsewhere,  with  summons  therein. 

IV.  That  no  order  for  publication  of  the  summons  in 
that  action  was  ever  made  [or  state  other  facts  showing 

failure  to  obtain  juris diction~\. 

No.  649. 

iv.     The  Same — Fraud  in  Obtaining  Judgment. 

[TITLE.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That,  after  the  commencement  of  the  action  men- 
tioned in  the  complaint,  the  said  plaintiff  came  to  this 
defendant,  and,  with  intent  to  deceive  him  and  prevent 
him  from  defending  it,  falsely  and  fraudulently  repre- 
sented \_here  state  false  representations,  detail  the  fraud 
fully  and  explicitly^. 


79  5  FORMS    OF    ANSWERS. 

6.  Irrelevant  Matter. — In  an.  action  on  a  foreign  judgment, 
matters  of  defense  alleging  fraud  in  the  obtaining  of  that  judgment, 
even  if  conceded  to  be  frivolous,  cannot  be  held  irrelevant,  so  as  to  be 
stricken  out  under  Section  152  of  the  Code.  (Fasnach  v.  Stehn,  5  Abb. 
Pr.  (N.S.}  338.)  A  plea  of  fraud  in  obtaining  a  judgment  sued  upon 
cannot  be  demurred  to  generally,  because  not  showing  the  particulars 
of  the  fraud  set  up.  Going  to  a  matter  of  form,  the  demurrer  should  be 
special.  Christmas  v.  Russell,  5  Wall.  U.S.  290. 


CHAPTER  VIII. 


No.  650. 

i.     Denial   of  Receipt. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  has  not  received  the  money  mentioned  in 
the  said  complaint,  nor  any  part  thereof. 

JVo.  651. 

* 

ii.    The  Same — Accounting  and  Payment. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

That  on  the  ....  day  of ,  1 8 . . ,  at , 

he  accounted  with  and  paid  over  to  the  plaintiff  all 
moneys  received  by  him,  up  to  that  day,  as  such  agent 
of  the  plaintiff. 


ON    MONEY    COUNTS.  797 

1.  Discharge  in   Bankruptcy. — In  an  action  of  assumpsit,  for 
money  had  and  received,  the  defendant  pleaded  a  discharge  in  bank- 
ruptcy.    The  plaintiff  replied  that,  in  the  proceedings  of  the  defendant 
in  obtaining  his  discharge,  the  defendant  was  guilty  of  fraud,  and  of  the 
willful  concealment  of  his  property  and  rights  of  property.     The  de- 
fendant rejoined,  traversing  the  fraud  and  the  willful  concealment,  and 
concluding  to  the  country.     Held,  on  demurrer,  that  the  rejoinder  was 
bad;  that  the  replication  was  bad  also,  in  attempting  to  put  in  issue  sev- 
eral distinct  matters,  and  that  the  plea  was  good,  notwithstanding  that 
it    contained  no  specific  averments  that  the  debt  was  one  provable 
under  the  bankruptcy,  or  that  the  defendant  had  received  a  certificate 
of  discharge,  or  that  notice  of  a  hearing  was  given  to  the  creditors  be- 
fore the  discharge  was  granted.     Weld  v.  Locke,  18  N.H.  141. 

2.  General  Denial. — An  allegation   in   the  complaint,  that  the 
defendants  sold  plaintiff's  property  for  a  certain  sum,  and  that  they 
"  have  had  the  use  of  and  interest  upon  said  money,  since  it  was  received 
by  the  defendants  for  the  plaintiff's  use,"  is  sufficiently  controverted  by . 
a  denial  in  defendants'  answer  that  they  sold  the  plaintiff's  property,  or 
that  they  received  therefor  any  money  whatever  to  the  plaintiff's  use. 
Robinson  v.  Commercial  Exchange  Ins.  Co.,  i  Abb.  Pr.  (N.S.)  186. 

3.  Insufficient  Denial. — If  the  complaint  avers  that  the  de- 
fendant is  indebted  to  the  plaintiff  in  the  sum  of  three  thousand  dol- 
lars gold  coin,  for  so  much  money  received  by  defendant  for  plaintiff's 
use,  and  the  answer  denies  that  the  defendant  received  three  thousand 
dollars  in  gold  coin  for  plaintiff's  use,  it  is  only  a  denial  of  its  receipt  in 
gold  coin,  and  does  not  raise  an  issue.     Leffingwell  v.  Griffing,  31 
Cal.  231. 

No.  652. 

iii.     For  Money  Lent — Denial  of  Loan. 

[TlTLE.J 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  did  not  lend  him  the  money  men- 
tioned in  the  complaint,  nor  any  part  thereof. 


798  FORMS    OF     ANSWERS. 

No.  653. 

\v.     For  Money  Paid — Denial  of  Request  by  Defendant. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  he  never  requested  the  plaintiff  to  pay  any 
money  to  A.  B. 

II.  That  he  never  promised  to  pay  any  money  to  the 
plaintiff,  on  account  of  any  money  paid  to  the  said  A.B., 
or  at  all. 

4.  Assignment  of  Claim. — To  an  action  for  money  due,  a 
plea  on  equitable  grounds,  that  plaintiff  assigned  the  debt  to  D.,  who 
notified  defendant  that  assignment  is  still  in  force,  that  defendant  is 
still  liable  to  pay  D.,  that  the  action  is  not  brought  for  the  benefit  nor 
with  the  consent  of  D.,  that  if  the  plaintiff  recovered,  the  defendant 
would  still  be  obliged  to  pay  D.,  is  good.     (Jeffs  v.  Day,  Law  Rep.  i 
Q.B.  372.)     In  an  action  to  recover  money  alleged  to  be  due  from 
the  defendant  to  the  plaintiff,  a  defense  alleging  that  a  third  person 
had  given  defendant  notice  that  he  was  owner  of  such  moneys  and  of 
any  cause  of  action  therefor,  and  demands  payment  to  himself  by  vir- 
tue of  an  assignment  from  the  plaintiff,  is  irrelevant.     Carpenter  v. 
Bell,  igAbb.Pr.  258. 

5.  Failure  of  Consideration. — A  county  warrant  drawn  by 
the  Auditor,  directing  the  Treasurer  to  pay  H.  E.  Co.  nine  hundred  and 
sixty-five  dollars,  for  services  as  county  printer,  was  for  a  valuable  tbn- 
sideration  indorsed  by  H.  E.  Co.  to  F.,  and  by  F.  transferred  to  plaintiff 
for  nine  hundred  and  sixty-five  dollars,  paid  by  the  latter.     The  war- 
rant was,  in  fact,  illegal  and  valueless,  and  payment  being  for  this  rea- 
son refused   by  the  Treasurer,  plaintiff  instituted  the  present  action 
against  H.  E.  Co.  and  F.  to  recover  back  the  amount  paid  by  him,  set- 
ting up  in  the  complaint  the  foregoing  facts,  and  that  defendants,  at  the 
time  of  their  transfers,  represented  that  the  warrant  was  valid,  and 
would  be  paid  on  presentation.     Held,  on  demurrer,  that  the  complaint 
stated  a  cause  of  action,  and  that  on  the  facts  alleged  plaintiff  was  en- 
titled to  recover  from  defendants  the  money  which  he  had  paid  for  the 
warrant.     Keller  v.  Hicks,  22  Cal.  457. 


ON     MONEY     COUNTS.  799 

6.  General  Denial. — A  general'  averment  that  defendant  does 
not  owe  the  money  sued  for,  nor  any  part  thereof,  is  not  sufficient.    Sap- 
ington  v.  Jeffries,  15  Mo.  628. 

7.  Sufficient  Plea. — Where  an  attorney  claims  a  sum  of  mo- 
ney paid  for  another,  to  procure  the  passage  of  an  Act  of  the  Legisla- 
ture, and  alleges  that  the  expenditure  was  made  in  good  faith,  was  ne- 
cessary, and  was  authorized  by  his  principal,  a  reply  that  the  expendi- 
ture was  unlawful  and  corrupt,  and  was  used  and  squandered  to  corrupt 
the  Legislature,  and  to  exert  upon  it  a  secret,  undue,  and  personal  in- 
fluence by  lobbying;  that  the  same  was  not  necessary;  that  the  Act  was 
honestly  passed,  and  was  not  secured  by  corrupt  means,  is  not  demur- 
rable.     Judah  v.  Vincennes  University,  23  Ind.  273. 


CHAPTER  IX. 

ANSWER    FOR    SERVICES,    WORK,  AND    LABOR. 

No.  654. 

i.     Accounting  and  Payment. 
[TITLE.]    . 

The  defendant  answers  to  the  complaint: 
First — For  a  first  defense: 

I.  He  denies  each  and  every  allegation  in  said  com- 
plaint, except  what  is  hereinafter  admitted. 

II.  The  defendant  admits  that  said  plaintiff  did,  at 
the  request  of  defendant,  enter  into  the  service  of  the 
defendant  as  stated  in  the  complaint,  but  alleges  that 
he  did  account  with  said  plaintiff  on  the  ....  day  of 

,   1 8 . . ,  at    ,  and   that   on   the  said 

accounting  there  was  found  due  said  plaintiff  only  the 
sum  of  .  .  dollars. 


SOO  FORMS    OF     ANSWERS. 

1.  Contractor's  Services. — When  the  defendants  employed  the 
plaintiff  to  superintend  the  erection  of  a  building,  of  which  he  was  one 
of  the  contractors,  they  cannot  plead  that  it  is  against  public  policy  that 
he  should  occupy  two  positions,  of  which  the  interests  were  in  conflict, 
in  defense  of  an  action  brought  by  him  for  services  as  superintendent. 
Shaw  v.  Andrews  &  Hillyer,  9  Cal.  73. 

2.  Corporation  Work. — In  an  action  against  a  municipal  cor- 
poration for  work  and  labor,  an  answer  setting  up  that  there  was  an  ap-. 
propriation  made  by  law  for  such  work,  which  has  been  exhausted,  is 
insufficient,  unless  it  appears  clearly  from  the  pleadings  and  the  law 
referred  to  that  the  work  was  covered  by  the  appropriation,  and  not  by 
others  contained  in  the  same  law.     Donovan  v.  Mayor  of  N.Y.,  44 
Barb.  180;  19  Abb.  Pr.  58. 

3.  Counter  Claims. — When  the  claim  of  plaintiff  and  counter 
claim  of  defendant  both  arise  out  of  the  same  contract,  defendant  may 
introduce  evidence  of  unliquidated  damages  embraced  in  his  counter 
claim,  unless  the  plaintiff  come  to  the  contract  by  assignment.     (Stod- 
dard  v.  Treadwell,  26  Cal.  300.)     WThen  an  action  is  based  upon  a 
contract  to  pay  a  stipulated  sum,  and  the  answer  sets  up  a  counter  claim 
for  damages  for  matters  arising  out  of  the  same  contract,  the  defendant 
cannot,  on  the  trial,  introduce  evidence  of  any  damages  except  those 
specially  set  up  in  the  answer.     Id. 

4.  Denial  of  Performance. — If  the  complaint  is  based  on  a 
written  contract,  by  the  terms  of  which  plaintiff  is  to  dp  certain  things, 
and  the  complaint  avers  a  faithful  performance  on  his  part,  and  the 
answer  denies  the  performance,  the  defendant  cannot,  under  this  alle- 
gation and  denial,  introduce  evidence  of  a  counter  claim.     Stoddard  v. 
Treadwell,  26  Cal.  305. 

5.  Form. — For    another  form  of  answer,  see  (Rice  v.  O'Connor, 
10  Abb.  Pr.   362.)     A  plea  merely  of  an  account  stated,  though   it 
avers  a  balance,  and  a  promise  of  plaintiff  to  pay  it,  is  bad,  for  it  is  a 
mere  accord,  without  satisfaction.     Bump  v.  Phrenix,  6  Hill,  308. 

6.  General  Denial. — As  to  what  may  be  proved  under  a  general 
denial,  in  an  action  for  services,  work,  and  labor,  see  (Shermerhorn  v. 
Van  Allen,  18  Barb.  29;  Raymond  v.  Richardson,  4  E.  D.  Smith.  171.) 
In  action  on  a  quantum  meruit  not  setting  up  a  specific  contract,  under 
a  general  denial  defendant  may  show  that  the   work  was  unskillfully 
done,  or  was  worth  less  than  the  amount  claimed.     (Raymond  v.  Rich- 


FOR    SERVICES,    ETC.  8oi 

ardson,  4  E.  D.  Smith,  172;  Bellinger  v.  Craigue,  31  Barb.  534; 
Trumbull  v.  Stilwell,  4  E.D.  Smith,  512.)'  On  a  specific  contract  it 
or  otherwise.  (Kendall  v.  Vallejo,  i  Cal.  371;  Piercy  v.  Sabin,  10  Cal. 
22.)  In  an  action  brought  to  recover  for  services  rendered,  the  de- 
fendant, under  an  answer  which  denies  the  allegation  in  the  complaint, 
and  denies  that  he  is  indebted  to  the  plaintiff,  is  at  liberty  to  prove  any 
circumstances  tending  to  show  that  he  was  never  indebted  at  all,  or  that 
he  owed  less  than  was  claimed.  He  may,  for  example,  under  such  de- 
nials, prove  that  he  never  incurred  the  debt,  or  that  the  services,  either 
in  whole  or  in  part,  were  rendered  as  a  gratuity,  or  that  the  plaintiff  had 
himself  fixed  a  less  price  for  them  than  he  claimed  to  recover,  or  tnat 
they  were  rendered  upon  the  credit  of  some  other  person  than  the  de- 
defendant,  etc.  So  doing  is  not  an  attempt  to  show  an  extinguishment 
of  the  alleged  indebtedness  by  payment,  release,  or  otherwise,  but  to 
show  that  such  indebtedness  never  existed.  Schermerhorn  v.  Van 
Allen,  1 8  Barb.  29. 

• 

7.  Professional    Services. — Suit    on   a  quantum  valebant  for 
professional  services,  the  rule  requiring  new  matter  to  be  set  up  does 
not  apply.     Bridges  v.  Paige,  13  Cal.  640. 

8.  Salary  of  Clerk. — If  a   merchant   employs  one,  by  written 
contract,  at  a  stated  salary,  to  act  as  his  chief  clerk  and  manging  agent 
for  a  stated  time,  and  an  action"  is  brought  by  the  clerk  on  the  contract 
for. wages,  and  the  answers  sets  up  a  counter  claim  for  damages  arising 
out  of  neglect  of  the  clerk  to  attend  to  the  business,  the  defendant  has 
a  right  on  the  trial-  to  introduce  evidence  of  a  loss  of  his  profits  and 
discontinuation  of  business  caused  by  the  clerk's  neglect;  and,  to  do 
this,  he  may  ask  a  witness  what  amount  of  additional  business  would 
have  been  done  if  the  clerk  had  attended  to  his  business.     (Stoddard  v. 
Treadwell,  26  Cal.  300.)     When  the  plaintiff's  action  arises   out   of 
contract,  defendant  may  introduce  evidence  of  any  counter  claim  aris- 
ing out  of  contract  existing  at  the  commencement  of  the  action,  even 
though  the  contracts  are  not  the  same.     Id. 

9.  Seaman's  Wages. — In  a  libel  for  wages,  the  allegations  of 
hiring,  voyage,  etc.,  should  be  drawn  accurately  and  with  reasonable 
certainty;  otherwise  it  may  be  excepted  to.     The  most  correct  course 
is  to  state  the  facts,  etc.,  in  distinct  articles,  which  is  the  usual  course 
in  admiralty  proceedings.     (Orne  v.  Townsend,  4  Mass.  541.)     In  a 
suit  for  wages,  or  for  a  share  in  a  whaling  voyage,  if  the  defense  sets  up 

51 


8O2  FORMS     OF     ANSWERS. 

misconduct,  there  must  be  a  special  allegation  of  the  facts,  with  due 
certainty  of  time,  place,  and  other  circumstances;  otherwise  the  Court 
will  reject  it.  Loose  allegations  of  general  misconduct  are  insufficient.  (Id.; 
Macomber  v. Thompson,  i  Sumn.  384;  Hart  v.  The  "Otis,"  Crabbe,  52.) 
Where  a  new  clause  in  the  shipping  articles  is  relied  upon  to  repeal  a 
claim  for  wages,  it  must  be  pleaded.  (Heard  v.  Rogers,  i  Sprague, 
556;  7  Laiv  Rep.  (N.S.)  442.)  Where,  in  answer  to  a  libel  for  wages, 
the  claimants  set  up  a  discharge  of  the  libelant  in  a  foreign  port  by 
order  of  the  consul,  it  is  incumbent  on  them  to  set  forth  in  their 
answer  a  state  of  facts  justifying  the  discharge  relied  on,  and  to  support 
the  allegations  by  adequate  proof.  (The  "Atlantic,"  Abb.  Adm.  451.) 
An  answer  averring  in  general  terms  that  a  vessel  was  supplied  with 
medicine  chest  according  to  law,  is  not  of  itself  sufficient  evidence  to 
discharge  a  master  from  his  liability  for  a  physician's  bill  for  attendance 
upon  a  sick  seaman.  (Freeman  v.  Baker,  Blatchf.  <Sf  H.  372.)  Where 
a  libel  claims  extra  wages,  in  satisfaction  of  a  short  allowance  of  pro- 
visions, under  Section  9  of  the  Act  of  July  20,  1790  (i  Stat  at  L., 
135),  the  answer  must  set  forth  precisely  whether  the  vessel  shipped 
the  quantity  and  quality  of  provisions  required  by  the  Statute,  or  an 
exception  will  lie  for  insufficiency.  The  "  Elizabeth  Forth,"  Blatchf. 
&  H.  195. 

10.  Violation  of  Contract. — Suit  for  services  as  agent  of  de- 
fendant under  a  contract.  Defendant  in  answer  sets  up  a  violation  of 
the  contract  on  the  part  of  the  plaintiff,  and  also  certain  other  matter 
amounting  to  a  tort  on  his  part,  as  conspiracy  to  have  the  property  of 
defendant  sold  and  bought  in  by  him,  circulating  false  reports  that 
defendant  was  bankrupt,  its  affairs  a  swindle,  etc.  Held,  that  this 
latter  portion  of  the  answer  was  properly  stricken  out,  on  motion  of 
plaintiff.  Bates  z>.  Sierra  Nevada  Lake  WTater  and  Mining  Co.,  18 
Cal  171. 


CHAPTER  X. 

ANSWERS    FOR    USE    AND    OCCUPATION. 

JVo.  655. 

i.     Denial  of  Indebtedness. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  denies  that  he  is  indebted  to  said  plaintiff,  in 
manner  and  form  as  alleged  in  the  said  complaint,  or 
in  any  manner,  or  at  all. 

1.  Set-Off — A  defendant  who  entered  under  a  bond  for  a  deed 
cannot  set  off  his  improvements  against  damages  for  use  and  occupa- 
tion. Kilburnz>.  Ritchie,  2  Cal.  145. 

JVo.  656. 

ii.     The  Same — Denial  of  Use  and  Occupation. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 
That  he  did  not  occupy  the  premises  as  alleged,  or 
at  all. 

JVo.  657. 

iii.     The  Same — Denial  of  Hiring. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 
That  he  did  not  hire  said  premises  of  the  plaintiff,  as 
alleged,  or  in  any  manner,  or  at  all. 


804  FORMS    OF    ANSWERS. 

2.  Admission — The  plea  of  no  rent  in  arrear  admits  the  demise 
as  laid  in  the  avowry.     (Alexander  v  Harris,  4  Cranch,  299;  affirming 
i  Cranch   C.  Ct.  243.)     An  omission  to  join  issue  upon  an  avowry  for 
rent  in  arrear,  or  otherwise  to  notice  it  on  the  record,  is  a  mere  irregu- 
larity, cured  by  the  verdict.     Dermott  v.  Wallach,  i  Black.  96. 

3.  Request. — "Hired"  implies  a  request.     Emery  v.  Fell,  2  T. 
R.  28. 


No.  658. 

iv.    The  Same — Denial  by  Assignee. 

[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  said  [lessee]  did  not  hire  the  premises  from  the 
defendant  as  alleged;  and  that  no  assignment  of  any 
such  lease  was  made  to,  or  accepted  by  the  defendant 
as  alleged;  and  that  the  defendant  did  not  occupy  the 
premises  under  the  lease,  or  under  any  lease. 


4.  Effect  of  Denial. — This  will  not  admit  evidence  that,  before 
the  commencement  of  the  action,  he  had  parted  with  all  interest  in  the 
lease  and  assignment.  (Keteltas  v.  Maybee,  i  Code  R.  (N.S.)  363.) 
The  occupation  under  a  parol  transfer  might  be  sufficient  to  bind  the 
..defendant.  Carter  v.  Hammett,  12  Barb.  253. 


No.  659. 

v.    The  Same — Assignee's  Assignment  to  Third  Person. 
, [TITLE.] 

'The  defendant  answers  to  the  complaint: 

That  before  the  rent  claimed  in  the  complaint  became 
due,  and  on  or  about  the  ....  day  of ,  18 . . , 


FOR    USE    AND    OCCUPATION.  805 

the  defendant  assigned  all  his  interest  in  said  lease  to 
one  C.  D.,  who  then  entered  into  possession,  and  so 
continued  when  said  rent  became  due. 


5.  Assignment. — One  of  the  Van  Rensselaer  leases  was  exe- 
cuted in  1799.  It  did  not  appear  that  rent  was  ever  paid  under  it,  and 
it  was  proved  that  rent  had  not  been  paid  for  twenty-two  years.  Held, 
that  as  the  so  called  lease  was  in  fee,  it  was  an  assignment,  and  did  not 
create  the  relation  of  landlord  and  tenant,  and  that  the  claim  against 
the  grantee  on  his  covenant  was  barred.  Lyon  v.  Chase,  51  Barb.  13; 
see  Cruger  v.  McClaughry,  51  Barb.  641;  Van  Rensselaer  v.  Barringer, 
39  N.Y.  9;  Hosford  v.  Ballard,  39  N.Y.  147. 


JVo.  660. 

vi.    The  Same — Eviction. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  on  the  ....  day  of ,  1 8  .  . ,  the  plaintiff 

evicted  him  from  the  premises  mentioned  in  the  com- 
plaint, and  has  ever  since  kept  him  out  of  the  posses- 
sion thereof  [or  state  the  facts\. 


NOTE. — See  Vernam  v.  Smith,  15  N.Y.  333;     also,  New  York  Code 
Commissioners'  Book  of  Forms. 

6.  How  Averred. — The  eviction,   to  constitute  a  bar,  must  be 
averred  to  have  taken  place  before  the  rent  claimed  fell  due.     (McCarty 
v.  Hudsons,  24    Wend.  291.)     It  must  be  stated  that  the  tenant  was 
evicted  or  expelled  from  the  premises,  and  kept  out  of  possession  until 
after  the  rent  became  due.     Vernam  v.  Smith,  15  N.Y.  327. 

7.  Insufficient  Defense. — In  an  action  for  rent,  the  complaint 
alleged  that  the  letting  was  by  an  agreement  in  writing  (not  stated  to 
be  under  seal),  by  which  the  plaintiff  leased  the  premises,  and  the  de- 
fendant agreed  to  pay  the  rent;  but  it  did  not  allege  that  the  defend- 
ant took  possession.     The  answer  set  up  two  defenses:  Fir  si,  That 


806  FORMS     OF     ANSWERS. 

although  the  plaintiff,  at  the  time  of  making  the  lease,  represented  that 
he  was  the  owner  of  the  premises,  and  entitled  to  lease  them,  he  was 
not,  but  that  the  premises  were  owned  by  third  parties,  "to  whom 
the  defendant  was  liable  for  the  use  and  occupation  thereof,"  and  that 
no  estate  or  interest  vested  in  the  defendant  by  the  lease.  Second,  That 
the  lease  contained  an  agreement  for  quiet  enjoyment;  that  shortly 
after  defendant  entered  into  possession,  one  W.  brought  an  action  of 
ejectment  against  him,  and,  after  defense,  recovered  judgment  against 
him  for  the  possession,  with  costs;  that  W.  made  claim  on  the  de- 
fendant for  mesne  profits  in  a  sum  equal  to  the  rent  claimed  by  the 
plaintiff,  and  defendant  demanded  judgment  against  the  plaintiff  for  his 
damages  by  failure  of  the  plaintiff's  title.  Held,  on  demurrer  to  the 
answer,  that  since  the  defendant  had  voluntarily  shown  the  fact  of  occu- 
pation, which  the  plaintiff  had  omitted  to  state,  the  rule  precluding  the 
tenant  from  denying  his  landlord's  title,  in  an  action  for  use  and  occu- 
pation, must  be  held  to  apply,  and  that  the  first  defense  was  insufficient. 
If  there  was  any  other  party  who  had  an  apparent  claim  for  the  use  of 
the  premises,  the  defendant  should  have  sought  a  remedy  by  inter- 
pleader. That  the  second  defense  was  insufficient,  it  showing  no  evic- 
tion. Vernam  v.  Smith,  15  N.Y.  327. 

8.  Must  be  Specially  Set  up. — Where  the  answer  of  the 
defendant,  on  a  claim  for  rent  in  arrear,  "  denies  that  he  is  indebted  to 
said  plaintiff  in  manner  and  form  as  said  plaintiff  has  above  thereof 
complained  against  him,"  it  is  substantially  the  plea  of  nil  debet  at  com- 
mon law,  and  under  it  the  defendant  may  prove  an  eviction.  (McLarren 
v.  Spalding,  2  Cal.  510;  Piercy  v.  Sabin,  10  Cal.  22;  and  Glasier  v. 
Cliff,  Id.  303);  as  to  the  necessity  of  pleading  new  matter  in  defense, 
affirmed  and  held  to  have  overruled  the  doctrine  of  (Gavin  v.  Annan,  2 
Cal.  494,  and  McLarren  v.  Spalding,  Id.  510;  Coles  v.  Soulsby,  21  Cal. 
47.)  In  an  action  for  rent,  the  defendant  pleaded  that  the  plaintiff  dur- 
ing the  term  leased  to  another  person,  and  excluded  the  defendant 
from  a  part  of  the  premises,  in  the  use  of  which  by  the  second  lessee 
large  quantities  of  water,  etc.,  were  discharged  on  the  defendants'  part, 
and  so  damaged  their  goods  that  they  were  forced  to  quit  the  premises; 
and  they  claimed  damages  therefor  in  the  action.  Held,  that  the  aver- 
ment in  the  plea  constituted  eviction,  and  were  not  set  off.  Dun- 
woody  v.  Raynor,  52  Penn.  292. 


FOR    USE    AND    OCCUPATION.  807 

No.  661. 

vii.    The  Same — Surrender. 

[TITLE.] 

• 

The  defendant  answers  to  the  complaint: 

That  on  the  ....  day  of ,  1 8 . . ,  he  surren- 
dered to  the  plaintiff  the  premises  mentioned  in  the 
complaint,  and  the  plaintiff  accepted  the  same. 

No.  662. 

viii.    The  Same — A   Defense  to  One  Installment. 

[TlTLE.] 

The  defendant  answers  to  the  complaint: 

That  to  the  last  installment  mentioned  in  the  com- 
plaint, the  defendant  alleges,  that  after  the  alleged  lease 
was  made  [or  after  the  alleged  letting],  and  before  said 
installment  became  due,  the  plaintiff  evicted  him  from 
the  premises,  and  has  ever  since  kept  him  out  of 
the  possession  thereof. 


CHAPTER  XI. 

ANSWERS  UPON   WRITTEN   INSTRUMENTS  FOR  THE  PAYMENT 
OF    MONEY    ONLY.- 

No.  663- 

i.     Bills  of  Exchange — Denial  of  Acceptance. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies 
that  he  did  accept  the  bill  mentioned  therein. 


8b8  FORiMS    OF     ANSWERS. 

No.  664. 

ii.     The  Same — Thai  Acceptance  was  Unauthorized. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

That  the  said  bill  was  made  without  the  authority  or 
consent  of  these  defendants,  and  out  of  the  course  of 
their  regular  business,  and  without  consideration  to 
them,  accepted  in  their  name  by  one  A.B.,  fraudulently 
pretending  to  act  under  their  authority. 

No.  665. 

iii.      The  Same — Denial  of  Presentment. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

That  the  bill  mentioned  therein  was  never  presented 
to  A.B.,  as  alleged,  or  at  all. 


1.  Presentment — Time. — The  holder  of  a  check  djd  not  pre- 
sent it  for  payment  until  twenty-five  days  after  it  was  drawn,  the  drawees 
having  failed  meantime.  The  deposit  with  the  drawee  was  made  in 
funds  which  had  became  depreciated,  but  which  did  not  appear  to  have 
been  so  at  the  time  of  the  deposit.  In  a  suit  on  the  check  as  a  bill  of 
exchange,  held,  that  the  drawer  was  discharged.  (Willets  v.  Paine,  43 
'///.  433.)  Plaintiff  took  from  her  debtor's  agent  the  agent's  check  for 
the  amount  of  the  debt,  and  did  not  present  it  for  payment  for  four 
weeks.  When  presented  it  was  dishonored,  but  there  was  a  reasonable 
chance,  though  not  a  certainty,  that  it  would  have  been  paid  if  pre- 
sented at  once.  The  debtor,  a  week  after  the  check  was  made,  paid  his 
agent  a  part  of  the  amount,  the  rest  being  in  the  agent's  hands  already. 
The  agent  absconded.  Held,  that  the  debtor  was  discharged.  (Hop- 
kins v.  Ware,  L.R.  4  Exch.  268.)  The  mere  fact  that  one  in  a  regular 


ON    WRITTEN    INSTRUMENTS.  809- 

course  of  business,  in  good  faith,  and  for  value,  receives  a  check  ten 
days  after  it  was  drawn  and  dated,  does  not  subject  him  to  the  equities 
between  the  original  parties  to  the  same.  Ames  v.  Merriam,  98 
Mass.  294. 

2.  Place. — The  failure  to  make  presentment  at  the  place  named 
would  not  discharge  the  debt,  but  could  only  be  pleaded  in  defense  as 
to  the  question  of  costs  and  damages.  (Montgomery  v.  Tutt,  n  Cal. 
307.)  A  plea  that  a  bill  of  exchange,  on  which  the  action  is  founded; 
was  not  drawn  and  accepted  at  the  place  alleged,  is  bad  on  demurrer. 
Jones  v.  Heaton,  i  McLean,  317. 


No.  666. 

iv.     The  Same  —  That  Acceptance  was  for  Accommodation. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

That  he  accepted  the  bill  mentioned  in  the  com- 
plaint for  the  accommodation  of  the  plaintiff;  and  that 
there  was  never  any  value  or  consideration  for  the 
acceptance  or  payment  of  said  bill  by  the  defendant. 


3.  Accommodation  Indorser.  —  Accommodation  indorser  may 
set  up  any  defense  available  to  the  maker,  asserted  (Sawyer  v.  Cham- 
bers, 44  Barb.  42.)     But  diversion  of  accommodation  note  from  its 
original  purpose  is  no  defense  in  the  mouth  of  the  maker,  unless 
injury  to  him  is  shown.     Corbitt  v.  Miller,  43  Barb.  305. 

4.  Authority,  Denial  of.  —  Where  a  bill  in  equity  alleges  that 
the  defendant  gave  authority  to  A.  to  draw  a  bill  of  exchange,  the 
answer,  to  completely  negative  such  allegation,  must  deny  the  authority, 
and  also   any   subsequent   ratification.      Clark  v.  Van   Reinsdyke,  9 
Cranch,  153. 

5.  Check  —  Set  Off  —  The  drawee  of  a  check,  certified  as  "good  " 
cannot  set  off  a  claim  on  the  holder  against  the  amount  so  transferred. 


8lO  FORMS    OF    ANSWERS. 

Brown  v,  Leckie,  43  HI.  497;  Bickford  v.  First  Nat.  B'k  of  Chicago, 
42  HI.  238;  Rounds  v.  Smith,  Id.  245. 

6.  Want  of  Consideration. — An  answer  in  an  action,  by  an 
indorser  of  a  note,  alleging  that  the  plaintiff  gave  no  value  for  the 
note,  but  took  the  same  as  security  for  an  old  debt,  and  showing  that 
the  plaintiff's  indorser  is  indebted  to  the  defendant,  sets  up  no  defense, 
and  no  evidence  can  be  admitted  under  it.  It  is  necessary  to  show 
that  the  indorser  was  so  indebted  at  the  time  of  the  transfer  to  the 
plaintiff,  as  the  latter  takes  the  note  free  from  subsequent  equities. 
(Elwell  v.  Dodge,  33  Barb.  336.)  For  form  of  answer  in  such  a  case, 
see  (Rodman  v.  Munson,  13  Barb.  64;  Dubois  v.  Baker,  40  Barb. 
556;  Nichols  v.  Smith,  42  Barb.  381.)  But  partial  failure  of  consider- 
ation cannot  be  alleged  in  bar.  (Lewis  v.  McMillan,  41  Barb.  420.) 
The  defense  of  want  of  consideration  is  personal  between  the  parties  to 
the  original  transaction.  It  cannot  be  set  up  against  an  independent 
liability  of  maker  or  indorser  of  negotiable  paper  given  in  payment. 
Gillispie  v.  Torrence,  25  N.Y.  306;  Delano  v.  Rawson,  10  Bosiv. 
286;  see,  also,  Agawam  Bank  v.  Egerton,  10  Bosw.  669. 


No.  667. 

v.     The  Same — Denial  of  Acceptance,  Presentment,  and  Protest. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and 
alleys:  « 

That  the  bill  of  exchange  mentioned  in  the  com- 
plaint was  not  presented  for  acceptance  nor  accepted,  as 
alleged,  or  at  all,  and  that  it  was  not  presented  for  pay- 
ment, nor  was  it  protested  for  non-payment. 


ON    WRITTEN    INSTRUMENTS.  8 1  I 

No.  668. 

vi'.     The  Same — Controverting  Excuse  for  Non-Presentment. 
[TITLE.] 

% 

The  defendant  answers  to  the  complaint,  and  denies: 

That  any  search  was  made,  when  the  said  bill  of 
exchange  became  due,  to  discover  the  residence  and 

person  of  the  said ,  at ,  or  elsewhere, 

or   at  all,  in  order  that   the  said  bill  might    be   pre- 
sented to  the  said for  payment. 


7.  Unreasonable  Delay. — When  an  unreasonable  delay  in  the 
presentment  of  a  check  is  meant  to  be  relied  on  as  a  defense  in  an 
action  against  the  drawer,  such  delay  should  be  so  averred  as  to  raise  a 
distinct  issue  in  the  answer.  Harbeck  v.  Craft,  4  Duer,  122. 


.  669. 

vii.     The  Same — Payment  before  Indorsement. 

The  defendant  answers  to  the  complaint: 

I.  That  after  the  bill  mentioned  in  the  complaint  was 
due,  and  while  said  \drawer\  was  the  holder  thereof, 
and  before  this  action,  the  defendant  satisfied  and  dis- 
charged the  principal  and  interest  [and   damages]  due 
on  said  bill,  by  payment  to  the  said  \_drawer\. 

II.  That   said   \drawer\   indorsed   said  bill   to    the 
plaintiff  after  said  payment. 


8.  Part  Payment. — See,  as  to  consequences  of  omitting  to  set 
up  an  available  defense  of  part  payment,  (Binck  v.  Wood,  43  Barb. 
315.)  As  to  defense  of  incautious  payment  of  stolen,  over-due  note 


8l2  FORMS    OF    ANSWERS. 

being  available,  see  (Cothram  v.  Collins,  29  How.  Pr.  113.)  So,  also, 
as  to  the  defense  that  holder  of  note  has  received  moneys  applicable  to 
its  payment.  Burrall  v.  Jones,  7  Bosw,  404. 


No.  670. 

» 

i.    Promissory  Note — Denial  of  Note. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies 
that  the  note  mentioned  [or  set  forth]  therein  is  his 
note. 


9.  Bankruptcy. — If  the  defendant  plead  the  bankruptcy  of  the 
indorser  in  bar,  a  replication  stating  that  the  note  was  given  to  the 
indorser  in  trust  for  the  plaintiff  is  good,  and  is  not  a  departure  from  a 
declaration  which  alleges  the  note  to  be  for  value  received.     (Wilson 
v.  Codman,  3  Cranch,  193.)     The  answer  to  a  suit  on  a  note  set  up 
defendant's  discharge  in  insolvency.     Held,  that  under  section  fifty-nine 
of  the  Practice  Act,  it  was  sufficient  to  allege  in  the  answer  that  a  judg- 
ment had  been  duly  rendered,  discharging  defendant  from  the  demand 
sued  on;  and  that  whether  the  demand  was  sufficiently  described  in 
defendant's  schedule  was  matter  of  evidence,  to  be  determined  at  the 
trial,  by  inspection  of  the  record.     Hanscom  v.  Tower,  17  Cal.  518. 

10.  Composition. — Where,  to  an  action  upon  a  promissory  note, 
an  agreement  of  composition  between  the  debtor  and  his  creditors, 
including  the  plaintiff,  is  relied  upon  as  a  defense,  such  agreement 
must  be  specially  pleaded,  and  cannot  be  considered  under  a  plea  of 
accord  and  satisfaction  by  the  giving  of  new  notes.     (Smith  v.  Owens, 
21  Cal.  n.)     In  an  action  against  the  maker  of  a  promissory  note,  he 
answered,  that  the  plaintiff,  with  other  creditors,  signed  a  composition 
deed,  agreeing  to  exchange  the  notes  they  had  against  the  defendant, 
for  other  extended  notes  to  be  drawn  by  him;  and  it  appeared  on  the 
trial,  that  the  defendant  called  on  the  plaintiff  and  offered  him  the  new 
notes  which  the  agreement  provided  for,  but  the  plaintiff  refused  to 
receive  them ;  but  that  he  had  not  the  new  notes  drawn  at  the  time  of  the 
offer;  to  complete  such  defense,  the  party  must  plead  and  prove,  not  only 
tender  of  the  new  notes,  but  also  aver  a  readiness  at  all  times  to  per- 


ON    WRITTEN    INSTRUMENTS.  813 

form  his  part  of  the  agreement,  and  must  bring  the  new  notes  thus 
tendered  into  court  on  the  trial.     Warburg  v.  Wilcox,  7  Abb.  Pr.  336. 

11.  Conclusion  of  Law. — In  an  action  on  a  promissory  note, 
where  the  complaint  contains  a  copy  of  the  same,  a  denial  of  indebted- 
ness is  no  denial  at  all.     (Kinney  v.  Osborne,  14  Cal.  112;  Sneed  v. 
Wishar,  8    Wheat.  690;  United  States  v.  Spencer,  2  McLean,  405.)    A 
denial  that  the  plaintiff  is  "  owner  and  holder"  of  a  note,  is  a  denial  of 
a  conclusion  of  law;  and  an  answer  admitting  the  other  facts,  but  deny- 
ing this,  raises  no  material  issue.      (Poorman  v.  Mills,  35    Cal.  113; 
Wedderspoon  v.  Rogers,  32  Cal.  569;  Oliver  v.  Depew,  14  Iowa,  490; 
McKnightz'.  Hunt,  3  Duer,  615.)     So  of  an  averment  that  the  note  in 
suit  "  was  obtained  from  the  said  defendant  by  fraud,  and  is  without 
consideration  and  void."     M'Murray  v.  Gifford,  5  How.  Pr.  1 4. 

12.  Counter  Claim. — It  is  enough  if  the  answer  states  a  cause  of 
action  against  the  plaintiff,  arising  out  of  contract  or  transaction  set 
forth  in  the  complaint,  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action.  (Allen  v.  Haskins,  5  Duer,  332.) 
In  an  action  on  a  promissory  note,  by  the  payee,  against  one  of  two  joint 
and  several  obligors,  the  defendant  pleaded  a  demand,  as  a  counter 
claim,  for  damages  for  the  unskillful  construction  of  a  mill  by  the  plaintiff 
for  the  defendant,  his  co-obligor,  and  T.,  for  the  construction  of  which 
the  note  in  suit  was  given  in  part  payment.     Held,  that  said  counter 
claim  being  for  unliquidated  damages,  and  in  part  a  demand  in  favor 
of  a  stranger  to  the  note  and  suit,  it  was  unavailable  as  a  defense  to  the 
action.     Hook  v.  White,  36  Cal.  299. 

13.  Counter  Claim — Set-Off — Where  a  negotiable  promissory 
note,  not  yet  due,  is  taken  bona  fide  as  collateral  security  for  a  pre-exist- 
ing debt,  it  is  not  subject  to  any  defense  existing  at  the  date  of  the 
assignment    between    the   parties.      Payne    v.  Bensley,   8    Cal.   260; 
affirmed  in  Robinson  v.  Smith,  14  Cal.  94. 

14.  Delivery. — To  a  complaint  on  a  promissory  note,  where 
plaintiff  alleged  the  making  of  the  note  by  defendant,  and  delivery  to 
plaintiff,  and  the  answer  denied  the  delivery  to  plaintiff:  Held,  that  de- 
nial raised  the  issue  on  the  making  of  the  note  so  far  as  making  includes 
delivery.    Russell  z>.  Whipple,  2  Cow.  256;  Sawyer  v.  Warner,  15  Barb. 
286;  Raynor  v.  Timerson,  46  Barb.  518. 

15.  Denial  of  Non-Payment. — A  specific  denial  of  the  allega- 


8 14  FORMS     OF     ANSWERS. 

tion  in  the  complaint  that  the  note  was  not  paid,  and  the  answer  stated 
that  on,  etc.,  the  note  had  been  paid,  forms  a  good  issue  between  the 
parties.  Van  Giesen  v.  Van  Giesen,  12  Barb.  520. 

16.  Duress. — A  plea  of  duress  by  the  maker  of  a  note,  as  against 
the  assignee,  is  bad,  unless  there  be  an  averment  of  notice  to  the  assignee. 
McClintick  v.  Johnson,  i  McLean,  414. 

17.  Former  Judgment. — In  an  action  against  an  indorser  of  a 
promissory  note,  a  former  verdict  and  judgment  in  favor  of  the  defend- 
ant, in  an  action  where  the  note  was  offered  in  evidence  under  a  count 
on  an  account  stated,  is  no  bar.  (Lindell  v.  Liggett,  i  Mo.  432.)  Judg- 
ment against  plaintiff,  as  holder  of  a  note  under  one  title,  is  no  estoppel 
to  a  subsequent  suit  upon  it  under  another.      Wheeler  v.  Ruckman,  2 
Abb.Pr.(N.S.)  1 8  6. 

18.  General  Issue. — Where  a  declaration  was  upon  a  joint  note, 
and  the  defendant  pleaded  that  the  note  was  the  separate  note  of  one  of 
the  defendants,  and  was  given  to  and  accepted  by  the  plaintiff  in  full  sat- 
isfaction of  a  debt:  Held,  that  the  plea  was  bad  upon  special  demurrer, 
as  amounting  to  the  general  issue.     Van  Ness  v.  Forrest,  8  Cranch,  30. 

19.  General  Denial. — Suit  on  a  promissory  note  made  by  de- 
fendants.    The  complaint,  not  verified,  sets  out  the  note,  and  avers 
assignment  thereof  by  payee  to  plaintiff.       Answer,  general  denial. 
Held,  that  the  answer  does  not  admit,  but  denies  the  assignment,  and 
hence  the  plaintiff  must  prove  it,  and  is  not  entitled  to  judgment  on  the 
pleadings.     (Hastings  v.  Dollarhide,  18  Cal.  392.)      That  the  plaintiff 
is  not  the  owner  and  holder  of  the  note  in  suit  may  be  proved  under  a 
general  denial  of  a  complaint  which  alleges  that  he  is.     (Wedderspoon 
v.  Rogers,   23   Cal.   569;    Poorman  v.  Mills,  35   Cal.   118;    Hull  v. 
Wheeler,  7  Abb.  Pr.  411;  Butterfield  v.  McComber,  22  How.  Pr.  150; 
Flammer  v.  Kline,  9  How.  Pr.  216;    Catlin  v.  Gunter,  i  Duer,  265; 
Seely  v.  Engel,  17  Barb.  530;  Higgins  v.  Rockwell,  2  Duer,  650;  Tay- 
lor v.  Corbiere,  8  How.  Pr.  388;  Holstein  v.  Rice,  1 5  How.  Pr.  i ;  see, 
contra,  Hatch  v.  Peet,  23  Barb.  582;    Witherspoon  v.  Van  Dolar,  15 
How.  Pr.  266;   Brown  v.  Ryckman,   12  How.  Pr.  313;    Fleuret  v. 
Roget,  5  Sand.  646;    Seeley  v.  Engel,  17   Barb.  530;  reversed   in    3 
Kern.  542.)     But  it  is  otherwise  where  no  indorsement  or  delivery  is 
averred.      (McKnight  v.  Hunt,  3  Duer,  615;  Metropolitan  Bank  v. 
Lord,  4  Id.  630;  i  Abb.  Pr.  185;  Hull  v.  Wheeler,  9  Abb.  Pr.  411.) 


ON    WRITTEN    INSTRUMENTS.  815 

If  the  complaint  is  not  verified,  and  it  sets  out  the  note  and  avers  assign- 
ment thereof  by  payee  to  plaintiff;  answer,  general  denial:  Held,  that 
the  answer  does  not  admit,  but  denies  the  assignment,  and  hence 
plaintiff  must  prove  it,  and  is  not  entitled  to  judgment  on  the  pleadings. 
(Hastings  z>.  Dollarhide,  18  CaL  390.)  A  complaint  to  subject  to  sale  a 
contract  for  the  sale  and  purchase  of  land  held  as  collateral  security  for 
the  payment  of  promissory  notes,  where  the  general  denial  is  in  a  para- 
graph of  the  answer,  alleging  that  the  defendant  was  not  a  maker  but 
merely  an  indorser  of  the  notes,  and  did  not  assign  the  contract  for  the 
sale  of  the  land  to  the  plaintiff,  either  by  delivery  or  indorsement,  is 
demurrable.  Vaughn  v.  Gushing,  23  Ind,  184. 

20.  Holder   in   Good   Faith. — A  negotiable  note  taken  after 
maturity  is  taken  subject  to  all  the  equities  between  maker  and  payee. 
(Vinton  v.  Crowe,   4   CaL   309.)      So  with  a  certificate   of  deposit. 
(Coye  v.  Palmer,  i6Cal.  158.)     An  indorsee  after  maturity  takes  the 
same  interest  that  the  indorser  had,  and  his  claim  is  subject  to  the  same 
defense.     Folsom  v.  Bartlett,  2  CaL  163. 

21.  Information  and  Belief. — In  a  suit  brought  by  a  firm  upon 
a  note,  an  answer  which  denies  any  knowledge  sufficient  to  form  a 
belief  as  to  whether  plaintiffs  comprise  the  firm  to  whose  order  the  note 
was    payable  is  erroneously  stricken  out.      Wales   v.  Chamblin,  19 
Mo.  500. 

22.  Injurious  Diversion  of  Note. — An  answer,  setting  up  that 
the  note  was  made  as  an  accomodation  note,  does  not  show  a  misappro- 
priation of  the  note  sufficient  to  constitute  a  defense,  by  merely  alleging 
that  it  was  expected  and  intended  that  the  plaintiff  should  have  the  pro- 
ceeds of  the  note  after  it  was  negotiated,  and  that  instead  he  had  taken 
the  note.     The  answer  should  show  a  diversion  of  the  note  injurious  to 
the  defendant.     Corbitt  v.  Miller,  43  Barb.  305. 

23.  Insufficient   Denials. — The  complaint  set   out  the  note 
in  hac  verba,  and  averred  ' '  that  said  note  had  not  been  paid,  nor  any 
part  thereof,"  etc.;    the  answer  thereto  denied  that  said  note  had  not 
been  paid,  and  further  denied  "  that  there  is  due  the  plaintiff  on  said 
note  any  sum  of  money,  or  anything:"  Held,  that  said  denials  were  of 
immaterial  averments  only;  that  said  answer  raised  no  issue,  and  was 
sham  and  irrelevant.     (Hook  v.  White,  36  CaL  299.)     In  an  answer 
by  the  maker  which  admits  the  making  and  dishonor  of  the  note,  and 
notice  of  non-payment  given  to  the  indorsers,  and  merely  denies  the 


8l6  FORMS    OF    ANSWERS. 

corporate  character  of  the  plaintiffs,  the  partnership  of  the  indorse rs  and 
plaintiff's  title  to  the  note  is  insufficient.  (18  N.F.  315;  Pres.  of  the 
Agawam  Bank  v.  Edgerton,  10  Bosw.  669.)  Where  the  pleadings  are 
verified,  and  it  is  alleged  in  the  complaint  that  the  note  sued  on  was 
assigned  to  plaintiff  for  a  valuble  consideration,  the  fact  of  the  assign- 
ment is  not  put  in  issue  by  denying  that  it  was  in  writing  and  for  a 
valuable  consideration.  Randolphs.  Harris,  28  Cal.  561. 

24.  Insufficient   Answers. — Where  the  complaint  contained 
two  counts,  each  upon  a  promissory  note,  an  answer  referring  simply  to 
"the  note  mentioned  in  the  complaint,"  was  held  bad  for  uncertainty. 
(Kneedlerz;.  Sternbergh,  10  How.  Pr.  67.)     A  declaration  in  assump- 
sit  contained  a  special  count  on  a  due  bill  and  the  common  counts. 
A  special  plea  commenced  thus:  "Now  comes  the  defendant,  and  de- 
fends the  wrong  and  injury,  etc.,  and  says  that  after  making  and  deliver- 
ing said  due  bill,  in  said  plaintiffs  first  count  in  said  declaration  men- 
tioned, to  wit,  etc.,"  proceeding  to  allege  payment  of  the  bill.     Held, 
that  the  plea  did  not  purport  to  answer  the  whole  allegation,  but  only 
the  special  count  on  the  due  bill.     Allen  v.  Bruessing,  32  ///.  505. 

25.  Lost  Note. — Where,  in  an  action  on  a  lost  note,  a  verified 
complaint  alleges  that  on  a  particular  day  the  note  in  question  was 
made  by  defendant,  and  delivered  to  plaintiff,  an  answer  denying  the 
making  and  delivery  of  the  note  on  the  day  mentioned  is  insufficient. 
Such  denial  does  not  reach  the  substantial  matter  of  the  averment,  and 
only  raises  an  immaterial  issue  as  to  time.    (Castro  v.  Wetmore,  16 
Cal.  379.)    Where,  in  an  action  on  a  lost  note,  the  complaint,  verified, 
alleges  the  loss,  stating  particularly  the  circumstances  thereof,  an  answer 
denying  that  the  note  was  lost  as  alleged,  does  not  put  in  issue  the  fact 
of  loss,  which  is  the  gist  of  the  averment,  but  only  the  circumstances  of 
the  loss,  which  are  collateral  and  immaterial.     Id. 

26.  Payment. — To  where  a   note  was  taken  in  payment  for 
another  note,  it  must  be  averred  that  such  note  was  taken  in  full  satis- 
faction and  payment.    (Homas  v.  McConnell,  ^McLean,  381.)    In  suit 
on  a  promissory  note,  an  answer  stating  that  defendant  made  two  pay- 
ments, the  last  of  which  extinguished  the  note,  is  sufficient.     (Joy  v. 
Cooley,  19  Mo.  645.)    One  who  purchases  a  promissory  note  past  due, 
but  which  has  been  paid  before  the  purchase,  takes  it  subject  to  the 
defense  of  payment.  •  Elgin  v.  Hill,  27  Cal.  372. 

27.  Payment,  -what  Constitutes. — The  surrender  of  a  note 


ON    WRITTEN    INSTRUMENTS.  817 

is  prima  facie  payment.  (Smiths.  Harper,  5  Cal.  329.)  But  if  sur- 
rendered by  mistake,  the  maker  is  still  liable  for  the  balance  unpaid. 
(Banks  v.  Marshall,  23  Cal.  223.)  So,  an  assignment  to*  the  maker 
amounts  to  payment.  (Gordons.  Wansey,  21  Cal.  77.)  If  a  promis- 
sory note  is  assigned  by  the  payee  before  maturity,  payment  to  the 
assignor  is  no  defense  to  an  action  brought  by  the  assignee  against  the 
maker.  (Morrill  v._  Morrill,  26  Cal.  288;  Patterson  v.  Atherton,  3 
McLean,  147.)  But  it  would  be  a  defense  if  the  payment  were  made 
before  assignment,  with  notice  to  the  assignee.  Morrill  v.  Morrill,  26 
Cal.  288. 

28.  Payment,  what  Does  not   Constitute. — Arrangement 
between  the  indorser  and  the  holder  of  a  note  is  not  pleadable  as  a  pay- 
ment.    (East  Riv.  Bk.  v.  Butterworth,  45  Barb.  476.)     Nor  can  the  in- 
dorser set  up  that  the  holder  of  a  note  past  due  has  taken  a  fresh  obli- 
gation from  the  maker  merely  as  collateral  security.     (Taylor  v.  Allen, 
36  Barb.   294;  see  Wright  v.  Starrs,  32  N.Y.  691.)     A  bill  of  sale 
made  by  the  payee  of  a  promissory  note  "  of  all  debts,  notes,  and 
accounts  of  whatever  nature  due  me,"  is  not  evidence  of  the  payment 
of  the  note.     (Morrill  v.  Morrill,  26  Cal.  288.)     A  plea  to  a  suit  brought 
by  an  assignee,  that  defendant  paid  amount  of  note  to  assignor  before 
he  had  notice  of  assignment,  cannot  be  sustained  against  assignee.     It 
should"  aver  that  the  payment  was  made  before  the  note  was  assigned,  or 
before  it  was  due.     Patterson  v.  Atherton,  3  McLean,  147. 

29.  Several  Answer. — Where  the  makers  and  several  indorsers 
of  a  note  are  sued  in  one  action,  an  answer  by  the  makers  will  not 
inure  as  an  answer  by  the  indorser,  nor  will  the  answer  of  one  of  sev- 
eral indorsers  inure  as  an  answer  of  the  others.     Alfred  v.  Watkins,  i 
Edm.  369. 

30.  Several  Defenses. — Defendant  may  deny  that  he  made  the 
note,  and  may  also  aver  that  at  the  time  of  the  alleged  making  of  the 
note  he  was  an  infant;  although  it  is  true  that  if  he  never  made  the 
note,  it  is  quite  immaterial  whether  he  was  an  infant  or  not.     (Mott  v. 
Burnett,  2  E.  D.  Smith,  50.)     He  may  also  set  up  as  a  defense  that  no 
consideration  was  ever  given  for  it,  and  as  a  second  defense  set  forth  the 
circumstances  under  which  it  was  executed  and  came  into  the  plaintiff's 
hands.     It  was  held  that  the  first  branch  of  the  fnswer  must  be  inter- 
preted by  the  second,  and  that  so  interpreted  it  was  no  defense.     Kyle 
v.  Harrington,  4  Abb.  Pr.  42. 

52 


8l8  FORMS    OF     ANSWERS. 

31.  Sham  Answer. — Where  a  complaint,  in  an  action  on  a  prom- 
issory note,  executed  by  two  defendants,  averred  that  the  defendants 
were  partners,  and  that  the  note  was  executed  by  them,  and  the  answer 
simply  denied  that  the  defendants  were  partners,  and  did  not  deny  that  they 
executed  the  note,  it  is  the  denial  of  an  immaterial  afbrment.     (White- 
hall v.  Thomas,  9  Cal.  499.)     Plaintiff  sued  on  a  note  made  by  de- 
fendants to  his  order,  the  complaint  not  being  verified,  but  setting  out 
the  note.     Defendants  pleaded  payment.     Plaintiff,  on  affidavits  that  the 
plea  was  false  and  pleaded  in  bad  faith,  moved  to  strike  out  the  answer, 
and  for  judgment.     Granted.     Held,  that  the  ruling  of  the  Court  was 
right;  that  under  the  fiftieth  section  of  the  Practice  Act,  "sham"  an- 
swers and  defenses  are  such  as  are  good  in  form,  but  false  in  fact,  and 
pleaded  in  bad  faith;  and  that  such  answers,  when  consisting  of  affirma- 
tive defenses,  should  be  stricken  out.     (Gostorfs  v.  Taaffe,  18  Cal. 
385.)     In  a  suit  on  a  note,  the  complaint  containing  trie  note  or  a  copy, 
a  denial  of  indebtedness  is  no  denial  at  all.     (Kenney  v,  Osborne,  14 
Cal.  in.)     So,  an  answer  which  simply  denies  a  legal  conclusion  will 
be  struck  out  as  sham.     Wedderspoon  v.  Rogers,  32  Cal.  569. 

32.  Special  Indorsee. — In  an  action  on  a  promissory  note,  by  a 
special  indorsee,  against  the  maker,  the  plaintiff  must  prove  at  the  trial 
the  genuineness  of  the  indorsements,  although  the  defendant  has  not 
denied  their  genuineness  under  oath.     Grogan  v.  Ruckle,  i   Cal.  158; 
reconsidered  and  affirmed  in  18  Cal.  390. 

33.  Substitution  of  Parties. — On  death  of  the  defendant,  in 
action  on  a  promissory  note,  the  substitution  of  administrator  and  con- 
tinuance of  the  suit  subjects  the  proceedings  to  such  rules  as  are  ap- 
plicable for  the  collection  of  claims  against  the  estate  of  a  deceased 
person.     Myers  v.  Mott,  29  Cal.  359. 

34.  Surety. — Where  a  promissoiy  note  is  signed  by  two  persons 
in  the  same  manner,  with  nothing  on  the  face  of  the  note  to  show  that 
one  was  merely  a  surety,  he  cannot  set  up  in  defense  that  he  was  such, 
and  that  the  plaintiff  had  not  sued  in  due  time,  and  had  given  no  no- 
tice of  demand  and  protest.     Kritzer  v.  Mills,  9  Cal.  2 1 . 

35.  Tender. — That  the  maker  of  a  note,  payable  at  a  particular 
place,  was  ready,  at  the  time  and  place,  to  pay,  is  matter  of  affirmative 
defense.     (Kendall  v  ^Badger,  i  McAll.  523;  Wolcott  v.  Van  Santvoord 
17  Johns.   248;  Caldwell  v.  Cassidy,  8  Cow.  271;  Troy  City  Bank  v. 
Grant,  Hill&  D.  Supp.  119;  Haxton  v.  Bishop,  3  Wend.  13.)     So,  also, 


ON    WRITTEN    INSTRUMENTS.  819 

of  a  bill  of  exchange,  as  against  the  acceptor  thereof.  (Foden  v.  Sharp, 
4  Johns.  183;  Wolcott  v.  Van  Santvoord,  17  Id.  248;  Green  v.  Goings,  7 
Barb.  652;  17  Mass.  389;  Gay  v.  Paine,  5  How.  Pr.  107;  Wallace  v. 
McConnell,  13  Pet.  236.)  It  would  seem  that  in  New  York  it  is  essen- 
tial to  an  answer  •  setting  upi.  tender,  to  aver  that  the  money  has  been 
actually  brought  into  court.  Hill  v.  Place,  5  Abb.  Pr.(N.S.)  18. 

36.  Verification. — A  copy  of  the  note  sued  on  being  attached  to 
and  made  a  part  of  the  complaint,  the  answer,  not  verified,  admits  the 
genuineness  and  due  execution  of  the  note,  and  entitles  the  plaintiff  to 
judgment.     Horn  v.  Volcano  Water  Co.,  1 3  Cal.  62 . 

No.  671. 

ii .   Denial  of  Indorsement. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  did  not  indorse  the  note  mentioned  therein. 

37.  Denial  of  Indorsement. — In  New  York,  a  denial  of  indorse- 
ment and  delivery  of  note  by  the  payee  to  the  plaintiffforms  a  material 
issue.     (Shermans.  Bushnell,    7  How.  Pr.   R.    171;  14  Barb.  393; 
Tompking  v.  Acer,  10  How  Pr.  309.)     In  an  action  on  a  promissory 
note,  an  answer  denying  the  indorsement  of  the  note  does  not  put  in 
issue  the  partnership.   (Anable  v.  Steam  Engine  Co.,  16  Abb.  Pr.  286.) 
The  action  being  to  charge  the  defendants  as  indorsers,  the  allegation 
of  their  partnership  is  material.     (Id.}     A  plea  that  the  defendant  who 
is  sued  as  principal,  indorsed  the  note  as  guarantor  and  not  as  principal, 
is  good  on  demurrer.     Dibble  v.  Duncan  2  McLean,  553;   compare 
Jauney  v.  Geiser,  i  Cranch  C.  Ct.  547. 

38.  Indorsetnent,  when  not  Denied. — A  defendant  is  not 
required  to  deny  under  oath  a  matter  of  which  he  is  not  presumed  to 
have  any  knowledge,  and  though  the  genuineness  and  due  execution 
of  a  note  is  admitted  if  not  specifically  denied,  yet   it  is  otherwise  with 
the  indorsement  where   the  defendant  was  not   privy   thereto,   as  the 
indorsement  is  alleged   merely  to  show  the  de^.ignment  of  title  to  the 
instrument  sued  on.     Make  v.  Reynolds,  Cal.  Sup.  Ct.,  July  T.,  1869; 
Youngs  v.  Bell,  4  Cal.  201. 


82O  FORMS    OF    ANSWERS. 

39.  Partnership — Insufficient  Denial. — A  complaint,  stating 
a  promissory  note,  whereby  the  maker  promised  to  pay  the  defendant 
named  "  doing  business  under  the  partnership  name  or  firm  of  C.  J. 
&  Co.,"  and  that  said  note  was  "  duly  indorsed  by  said  defendant  by 
their  said  partnership  name,"  sufficiently  0vers  the  partnership;  and  an 
answer  thereto  denying  "the  indorsement  in  the  complaint  alleged," 
does  not  put  the  partnership  in  issue.  Hence,  under  such  pleadings, 
evidence  offered  by  one  of  the  defendants,  that  he  was  never  a  member 
of  the  firm  of  C.  J.  &  Co.,  is  inadmissible.  Anable  v.  Conklin,  25  N.Y. 
470;  affirming  S.C.,  sub  nom.  Anable  v.  Steam  Engine  Co.,  16  Abb. 
Pr.  268. 

No.  672. 

ill.    That  Defendant  Indorsed  as  Agent. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  he  did  not  indorse  the  note  mentioned  therein, 
and  that  the  said   note  was  not  protested  for  non-pay- 
ment. 

II.  The  defendant  alleges  that  the  following  is  a  true 
copy  of  the  promissory    note  made  by  the  said  firm  of 
B.  &  Co.,  and  on  which  this  action  is  brought:    [Copy  of 
note  and  indorsement,  with  addition  of  "Treasurer" 
to  defendant's  signature^ 

III.  That  at  the  time  of  the  making  and  indorsement 
of  said   note,  this  defendant   was   the  treasurer  of  the 
Company,  at ,  a  foreign  corpora- 
tion, duly  incorporated  by  and  under  the  laws  of  the 

State  of ;  and  that  he  was  authorized  by  them 

to  receive  the  said  note,  and  to  indorse  the  same  to  the 
plaintiffs,    as   such    treasurer,    of    all    which  facts   the 
plaintiffs  had  notice. 

IV.  That   said  corporation   was,  at   the  time  of  said 


ON    WRITTEN     INSTRUMENTS.  821 

indorsement,  indebted  to  the  plaintiffs  to  the  amount  of 
dollars,  for  [state  wha(\ ;  and  said  note  was  re- 
ceived by  him  as  such  treasurer,  and  not  in  his  individual 
capacity,  and  was  received  by  the  plaintiffs  as  an 
obligation  of  the  said  corporation,  on  account  of  said 
precedent  debt  due  to  them  from  the  said  corporation, 
and  for  and  on  account  of  no  other  consideration  what- 
ever, and  that  the  defendant  received  no  consideration 
therefor. 


40.  Form. — This  form  is  from  Abbotts'  Forms,  No.  833,  and  is 
in  substance  the  answer  in  (Babcockz>.  Beman,  n  N.Y.  200.)  The 
defendant  should  aver  and  prove  the  authority  under  which  he  acted, 
and  show  that  the  plaintiffs  have  a  right  of  action  against  some  other 
person.  White  v.  Skinner,  13  Johns.  306. 


No.  673. 

iv.     Denial  of  Presentment. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  bill  mentioned  therein  was  never  presented 
to  A.B.,  etc. 


41.  Controverting  Presentment. — That  the  maker  of  the  note 
payable  at  a  particular  place  was  ready  at  the  time  and  place  to  pay,  is 
matter  of  affirmative  defense.  (Kendall  v.  Badger,  i  Me  All.  523.)  A 
denial  of  the  allegation  of  presentment  and  non-payment  of  note  is 
sufficient.  Dickenson  v.  Kimball,  i  Code  R.  49. 


T 

• 

822  FORMS    OF    ANSWERS. 

No.  674- 

v.     Denial  of  Notice  of  Dishonor. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  notice  of  the  dishonor  of  the  note  [or  bill  of 
exchange]  mentioned  in  the  complaint,  was  not  given 
to  him. 

42.  Notice  of  Protest. — The  denial  in  a  verified  answer  of  the 
indorsers,  in  action  on  a  promissory  note,  that  notice  of  protest  was 
given  to  them,  is  not  sufficient  as  an  affidavit  annexed  to  a  plea,  under 
2  Revised  Statutes,  212,  §  46,  denying  that  notice  was  received.    Edger- 
ton  v.  Smith,  3  Duer,  614;  Arnold  v.  Rock  River  Valley  Union  R.R. 
Co.,  5  Duer,  207;  compare  Burrall  v.  De  Groot,  5  Id.  379,  382. 

No.  675. 

A 

vi.     Alteration  of  the  Instrument. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  after  the  making  [or  acceptance]  and  issue 
of  said  note  [or  bill],  and  before  this  action,  the  same 
was  materially  altered,  without  the  consent  of  the 
defendant,  by  adding  the  signature  of  A.  B.  as  a  joint 
maker  thereof  [or  by  cutting  off  the  signature  of  A.B., 
who  was  ajoint  maker  thereof,  or  by  adding  the  words, 

"payable  at ,"  or  otherwise,  as  the  case  may 

be'}. 

43.  Alteration. — An  answer,  to  a  suit  on  a  promissory  note  by 
the  assignee,  which  sets  up  as  one  defense :    First,  That  the  note  was 


ON    WRITTEN     INSTRUMENTS.  823 

made  payable  to  order,  and  was  afterwards  fraudulently  altered  by 
inserting  the  word  "bearer"  in  lieu  of  the  word  "order;"  Second,  That 
the  defendant  paid  the  note  before  assignment  to  plaintiff  after  matu- 
rity, etc.  Held,  not  fatally  defective.  (Sherman  v.  Rollberg,  1 1  Cal. 
38.)  Where  an  answer  contains  an  allegation  of  alteration  of  an 
instrument,  it  must  state  that  such  alteration  was  made  with  the  knowl- 
edge or  consent,  or  by  the  authority  of  the  plaintiff.  (Humphreys  v. 
Crane,  5  Cal.  173.)  For  form  of  answer  for  mistake  in  amount  of 
note,  see  Seeley  v.  Engell,  13  N.Y.  542. 


JV  o.  676. 

vii.     Usury  as  a  Defense  upon  a  Note. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  note  mentioned  therein  was  given  to  the 
plaintiff  in  pursuance  of  a  mutual  agreement,  between 
the  plaintiff  and  defendant,  that  the  plaintiff  should  lend 
the  defendant  money,  at  the  rate  of  [ten]  per  centum 
per  annum. 

II.  That  the  defendant  received  from  the  plaintiff 

dollars  only,  as  consideration  for  the  said  note; 

the   plaintiff   retaining    dollars,    as    interest 

thereon. 

/ 

I 

NOTE. — In  California,  we  have  no  usury  law. 

44.  Foreign  Usury  Laws. — To  set  up  the  defense  that  a 
foreign  contract  is  void,  by  foreign  usury  laws,  defendant  should  first 
state  what  those  laws  were  at  the  time  of  the  transaction,  and  then  set 
out  the  facts  which  rendered  the  securities  void,  according  to  those  laws. 
(Curtis  v.  Hasten,  n  Paige,  15.)  A  general  allegation  of  usury  is 
not  enough;  the  answer  should  state  what  the  usurious  agreement  was, 
and  between  whom  it  was  made,  and  the  amount  of  the  usury; 
(Manning  v.  Tyler,  21  N.Y.  567;  Griggs  v.  Howe,  31  Barb.  100;)  as 


824  FORMS    OF     ANSWERS.  * 

well  as  the  amount  of  the  loan.  (Smalley  v.  Doughty,  6  Bosw.  66.)  The 
rate  should  be  stated  with  definiteness.  Dagal  v.  Simmons,  23 
N.F.  491. 

45.  How  Alleged. — It  is  not  necessary  to  allege  in  terms  that 
the  transaction  was  "usurious"  or. "corrupt,"  if  facts  which  amount  to 
usury  are  stated  with  sufficient  certainty.     (Miller  v.  Schuyler,  20  N.K 
522.)     For  a  form  of  answer  of  usury,  in  the  transfer  of  an  accom- 
modation note,  see  (Cathin   v.  Gunter,  n   N.Y.  368;   approved   in 
Manning  v.  Tyler,  21  N.F.  567.)     An  answer  pleading  usury  in  the 
discount  by  the  plaintiff,  should  show  that  the  note  never  had  any 
valid  existence  as  a  contract  or  promise  to  pay,  at  the  time  it  was  dis- 
counted by  the  plaintiff.     Burrall  v.  Bowen,  21  How,  Pr.  378. 

46.  Insufficient  Allegation. — An  allegation  that  one  received 
goods  "without  paying  any  consideration  therefor,"  is  not  sustained 
by  proof  that  the   advances  made  by  him  were  at  a  usurious  rate  of  in- 
terest.    Williams  v.  Birch,  6  Bosw.  299. 

47.  Must  be  Specially  Pleaded. — Usury  is  a  defense  which 
cannot  be  made  available  on  the  trial  of  a  cause,  unless  it  is  specially 
pleaded.    (Morford  v.  Davis,  28  N.Y.  481.)    For  a  sufficient  statement 
of  such  a  defense,  see  (Butterworth  v.  Pecare,  8  Bosw.  671.)     Usury 
can  no  longer  be  proved  under  a  denial  of  making  the  contract.     Evi- 
dence of  it  in  the  transfer  of  a  note,  if  not  alleged  in  the  pleadings,  is 
inadmissible,  even  as  a  circumstance  to  show  that  the  holder  did  not 
take  the  note  in  good  faith.     Scott  v.  Johnson,  5  Bosw.  213. 

48.  Usury    as   a  Defense. — To  a  complaint  on  a  note,  the 
answer  of  an  indorser  alleged  usury,  and  demanded  judgment  that  his 
name  be  canceled  and  discharged  from  the  note :  Held,  that  the  answer 
was  not  to  be  deemed  as  setting  up  a  counter-claim,  so  that  failure  to 
reply  admitted  its  allegations.      When  the  facts  alleged  may  possibly 
constitute  a  counter-claim,  but  are  such  as  always  constitute  a  flat  bar 
at  law  to  the  action,  they  should  be  deemed  to  be  set  up  as  a  defense 
merely,  unless  the  answer  expressly  states  that  they  are  set  up  by  way 
of  counter-claim.     To  preclude  a  plaintiff  from  a  recovery,  on  the  idea 
that  he  has  admitted  the  allegations  of  such  an  answer  to  be  true  by 
omitting  to  reply  to  it,  when  the  same  allegations  viewed  merely  as  a 
defense  would  be  put  at  issue  by  the  Code,  would  operate  as  a  surprise 
in  all  actions  in  which  the  defense  of  usury  is  interposed.     Burrall  v. 
De  Groot,  5  Duer,  379;  and  see  Gildersleeve  v.  Mahony,  5  Id.  383-385. 


ON "  WRIT  TEN     INSTRUMENTS.  825 

JVo.   677. 

viii.     That  the  Note  -was  for  Goods  Sold  by  Means  of  Deceit. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  \_Allege  sale  as  in  case  of  an  action  for  damages 
for  deceit.     See  ante,  Forms  Nos.  506,  508.] 

II.  That  said  note  was  given  to  the  plaintiff  without 
any  other  consideration  than  said  [sale]. 

III..  That  immediately  on  discovering  said  fraud,  the 
defendant  rescinded  said  [contract],  and  tendered  to  the 
plaintiff  all  that  he  had  received  under  said  contract, 
upon  condition  of  his  returning  said  note,  which  the 
plaintiff  refused  to  do. 

49.  Deceit. — It  is  no  defense  to  a  note  given  by  one  partner  to  the 
other  for  his  interest  in  land  held  jointly  by  both,  that  the  payee  of  the 
note  had  deceived  his  partner,  the  maker,  in  the  division  of  partnership 
stock,  and  was  indebted  therefor  in  an  amount  equal  to  or  greater  than 
the  sum  due  on  the  note.  (Cass  v.  Maxey,  6  Cal.  276.)  When  such  a 
defense  was  set  up  in  the  answer,  in  an  action  on  the  note :  Held,  that 
all  of  the  answer,  except  that  portion  admitting  the  execution  of  the 
note  and  denying  the  indebtedness,  was  properly  stricken  out.  Id. 

JVo.  678. 

ix.     Illegal  Interest  in  Note. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

As  to  the  sum  of dollars,  parcel  of  said  sum 

of dollars,  in  said  complaint  demanded,  the 

said  defendant  admits  that  he  owes  the   said  sum  of 


826  FORMS    OF     ANSWERS. 

dollars  to  the  said  plaintiff;  but  as  to  the  sum 

of   dollars,   the  residue  of  the  said  sum  of 

dollars,  the  said  defendant  says  that  the  said 

promissory  note  in  the  complaint  mentioned  was  given 
by  the  said  defendant  to  the  said  plaintiff  for  the  loan  of 

dollars  for years,  and  no  more;  and 

that  the  said  sum  of dollars  was  included  in 

said  note,  as  interest  on  the  said  sum  of dol- 
lars for  the  said  term  of years,  at  the  rate  of 

per  cent,  per  annum. 

50.     Form. — This  form  is  applicable  under  a  statute  which  for- 
feits only  the  usurious  interest.     From  Nash's  Ohio  PL  &  Pr.  311. 


No.  679. 

x.     Fraud — Note  Procured  by  Fraud. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  at  the  time  the  note  in  the  complaint  set  forth 
was  made,  he  was  indebted  to  one  E.  F.,  by  book  ac- 
count, in  the  sum  of dollars. 

II.  That  the  plaintiff  at  the  time  falsely  and  fraudu- 
lently represented  to  the  defendant  that  he   was  the 
owner  and  assignee  of  said  account  and  indebtedness, 
and  thereby,  and  without  any  consideration  whatever, 
induced  the  defendant  to  make  said  note  to  him  in  sat- 
isfaction and  discharge  of  said  account. 

III.  That  the  said  representations  were  false,  and 
that  the  plaintiff  never  was  the  owner  or  assignee  of 
said  account,  nor  had  he  any  beneficial  interest  in  the 
same. 


ON   WRITTEN    INSTRUMENTS.  827 

IV.  That  the  defendant  was  misled  by  said  false 
representations.  \_Or,  that  the  belief  of  the  defendant 
in  the  truth  of  said  representations  induced  him  to 
make  said  note.] 


51.  Fraud. — In  an  action  on  a  negotiable  note,  by  the  payee,  against 
the  maker,  a  plea  which  amounts  to  an  averment  of  fraud  on  the  part 
of  both  parties  and  a  third  person,  with  a  view  to  defraud  the  creditors 
of  the  latter,  is  bad,  as  it  tenders  an  issue  foreign  to  the  case.     (Moore 
v.  Thompson,  6  Mo.  353.)     Where  the  defense  set  up  is  that  defend- 
ant executed  said  note  as  the  consideration  for  a  deed  from  plaintiff  for 
certain  land,  under  false  and  fraudulent  representations  that  plaintiff  had 
an  interest  therein,  the  defendant,  if  he  would  avoid  payment,  must  offer 
to  surrender  the  deed  to  be  canceled,  so  that  both  parties  could  have  been 
remitted  to  their  original  rights.     (Tissot  v.  Throckmorton,  6  Cal.  471.) 
Where  fraud  is  set  up  as  a  defense,  the  answer  must  aver  that  the  de- 
fendant has  done  all  in  his  power  to  restore  the  plaintiff  to  his  former 
condition,  or  the  fact  cannot  be  proved.     Devendorf  v.  Beardsley,  23 
Barb.  656. 

52.  Fraud,  how  Alleged. — In  defense  to  an  action  on  a  prom- 
issory note,  it  is  not  sufficient  to  plead,  in  general  terms,  want  of  con- 
sideration, and  that  the  note  was  obtained  by  fraud;  the  answer  should 
set  out  the  circumstances  under  which  the  note  was  given,  and  point 
out  the  facts  -which  constitute  the   fraud.     (Gushee  v.  Leavitt,  5   Cal. 
1 60.)     Fraud  cannot  be  alleged  generally.     (McMurray  v.  Gifford,  5 
How.  Pr.  14;  Anderson  v.  Johnspn,  3  Sandf.  i.)     To  avoid  the  con- 
tract sued  on,  by  an  answer  setting  up  false  representations,  it  must 
be  alleged  that  the  plaintiff  knew  the  representations  were  false,  and 
that  the  defendant  was  misled  thereby,  or  that  his  belief  in  their  truth 
induced  him  to  enter  into  the  contract.     (Van  de  Sande  v.  Hall,  13 
How.  Pr.  458;  Palmer  v.  Smedley,  18  Id.  321.)     For  substance  of  a 
sufficient  answer,  setting  up  that  the  defendant  was  induced  to  make  the 
contract  sued  on  by  the  fraud  of  a  broker  who  was  the  plaintiff's  agent, 
see  Cassard  v.  Hinman,  6  Bosw.  8. 

53.  Must  be  Specially  Pleaded. — Fraud  cannot  be  proved  on 
the  trial,  if  not  alleged  in  the  pleadings.     (Ogden  v.  Raymond,  5  Bosw. 
1 6.)     To  a  complaint  in  the  usual  form  upon  a  promissory  note,  an 
answer  was  filed,  admitting  the  signing  of  the  note,  but  averring  that  it 


828  FORMS    OF    ANSWERS. 

was  made,  not  on  account  of  an  indebtedness  existing  between  the 
parties,  but  for  the  purpose  of  being  used  as  collateral  security  for  a 
debt  due  to  a  third  person  from  the  maker  and  payee  jointly;  that  the 
joint  debt  was  subsequently  paid,  and  that  the  note  having  thus  become 
functus  officto,  should  have  been  canceled,  but  through  fraud  was  taken 
and  held  by  the  payee,  and  transferred  without  consideration  by  him  to 
the  plaintiff:  Held,  that  these  allegations  were  not  new  matter,  which, 
under  the  system  of  replication  then  in  force,  was  admitted  by  a  failure 
to  reply;  that  their  only  effect  was  to  deny  that  any  obligation  of  the 
character  counted  upon  in  the  complaint  was  ever  created  by  the  sign- 
ing of  the  instrument,  and  thus  to  traverse  its  essential  allegations. 
Goddard  v.  Fulton,  21  CaL  430. 

54.  Note  for  Mining  Stock. — If  a  defendant  would  resist  the 
payment  of  a  promissory  note  given  for  mining  stock,  on  the  ground 
that  the  seller  made  fraudulent  representations  as  to  the  value  of  the 
mine,  the  answer  should  set  up  the  defense,  and  aver  either  that  the 
stock  was  valueless  to  either  party,  or  that  the  defendant  had  offered  to 
return  it  and  rescind  the  contract.  Gifford  v.  Carvill,  29  Cat.  589. 


No.  680. 

xi.    Thai  the  Note  wets  for  Goods  Sold  on  a  False   Warranty. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  defendant  made,  executed,  and  delivered 
the  note  mentioned  in  the  complaint  for  and  on  account 
of  certain  goods  [describe  them\  theretofore  furnished 
by  the  plaintiff  to  him,  the  defendant,  under  a  represent- 
ation and  warranty  by  the  plaintiff,  at  the  time  of  so  fur- 
nishing them  made  to  the  defendant,  that  the  said  goods 
were  [state  facts  relative  to  the  warranty}. 

II.  That  the  defendant  then  accepted  and  purchased 
said  goods  for  the  purpose  of  [state  purpose\,  trusting 
in  the  said  representation  and  warranty  of  the  plaintiff, 
all  of  which  the  plaintiff  then  well  knew. 


ON    WRITTEN    INSTRUMENTS.  829 

III.    That  the  same  were  not  the  kind  of  goods  pur- 
chased, nor  would  they  answer  the  purpose  designated. 

55.  Form  of  Plea. — The  nature  of  the  defect  should  be  stated; 
(Castles  v.  Woodhouse,  N.Y.  Leg.  Obs.  392;  S.C.,  i  Code  R.Ji;}  and 
the  extent  of  the  depreciation  caused  by  it,  as  nearly  as  may  be. 
(Defendorf  v.  Gage,  7  Barb.  18.)  In  an  action  against  the  maker  of  a 
note,  the  defendant  answered,  setting  up  a  failure  of  consideration,  in 
that  the  goods  sold  by  the  plaintiff,  in  payment  for  which  the  note  was 
given,  were  not  of  the  quality  warranted,  and  claimed  damages  for  the 
breach  of  warranty.  Held,  that  the  defense  set  up  by  the  answer  did 
not  constitute  a  counter  claim,  and  required  no  reply.  (Nichols  v.  Boe- 
rum,  6  Abb.  Pr.  290.)  A  plea  to  an  action  on  a  note  given  for  mer- 
chandise, which  avers  that  the  goods  purchased  are  of  no  value  to  the 
defendant,  is  not  good.  It  should  show  that  the  goods,  if  they  had  been 
returned  to  the  plaintiff,  would  have  been  valueless.  (Christy  v.  Cum- 
mins, 3  McLean,  386.)  Where  defendants  gave  their  note  for  a  tract  of 
land  as  a  part  of  the  public  domain,  defendants  might  plead  the  fact  in 
an  action  on  the  notes.  Scudder  v.  Andrews,  2  McLean,  464. 


No.  681. 

xii.    Recoupment  for  Breach  of  Warranty. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  said  note  was  not,  before  it  became  due, 
transferred  and  delivered  to  the  plaintiff  for  value. 

II.  That  the  said  note  was  made  and  delivered  by 
the  defendant  jp  one  A.  B.,  who  was  at  that  time  an 
agent  or  servant  of  the  plaintiff,  and  acting  as  such  on 
behalf  of  the  plaintiff  in  that  transaction,  in  exchange 
for  a  quantity  of  cigars,  which  were  sold  by  sample  to 
the  defendant  at  that  time,  by  said  A.  B.,  as  such  agent. 

III.  That  when  said  cigars  were  delivered  to  this 


830  FORMS   OF   ANSWERS. 

defendant,  they  did  not  correspond  with  the  samples, 
and  were  not  worth  more  than dollars. 

IV.  That  as  soon  as  the  defendant  learned  the  char- 
acter of  said  cigars,  he  offered  to  said  A.  B.,  as  such 
agent,  to  return  them,  which  he  is  still  ready  and  willing 
to  do. 

Whereupon  the  defendant  claims  to  recoup 

dollars,  his  damage  in  their  behalf,  from  the  amount 
of  the  said  note. 


Form. — This  form,  from  "  Abbotts'  Forms,"  No.  870,  is  in  sub- 
substance  from  Allen  v.  Haskins,  5  Duer,  332. 

56.  Counter  Claim — Recoupment. — In  an  action  on  a  prom- 
issory note  for  $  1 20,  the  answer  of  the  defendant,  the  maker,  stated 
that  the  note  was  given  on  the  purchase  of  goods;  that  the  goods  were 
not  of  the  quality  warranted,  and  that  upon  the  discovery  of  their  de- 
fects he  offered  to  return  them,  and  he  claimed  damages  in  the  sum 
of  $  100,  to  be  recouped  from  the  amount  of  the  note.  Held,  on  de- 
murrer to  the  answer,  that  the  answer  was  not  insufficient  because  it 
did  not  present  a  defense  to  the  whole  demand  of  the  plaintiff.  If  there 
was  a  breach  of  warranty,  the  defendant  would  have  a  cause  of  action 
against  the  plaintiff.  Beirne  v.  Dord,  i  Seld.  95;  Hargous  v.  Stone, 
i  Id.  72. 


JVo.  682. 

xiii.     That  the  Note   was  for  Accommodation,    and  was    Misapplied. 

[TITLE.] 

• 
The  defendant  answers  to  the  complaint: 

I.  That  the  note  mentioned  and  described  in  the 
complaint  was  given  by  this  defendant  to  [the  payee] 
therein  named,  without  any  other  consideration  than  is 
hereinafter  stated. 


ON    WRITTEN     INSTRUMENTS.  83! 

II.  That  theretofore  this  defendant  had  loaned  his 

promissory  note    for dollars,   dated    on    the 

....  day   of ,  1 8 . . ,  to  said  \J>ayee~]t  without 

consideration,  and  solely  for  the  accommodation  of  said 
[payee],  and  upon  his  promise  to  take  up  and  pay  the 
same  at  maturity. 

III.  That  the  said  note  fell  due  on  the  ....  day  of 

,  1 8 .  . ,  and  that,  at  the  request  of  said  [payee], 

this  defendant  then  gave  him  the  note  in  suit,  for  the 
special  purpose  of  enabling  him  therewith  to  take  up 

and  renew  said  first  note  of dollars,  he  paying 

the  balance,  and  upon  the  agreement  with  him  that  it 
should  be  so  used,  and  not  otherwise. 

IV.  That  the  plaintiff  having  a  claim  then  over-due 
against  the  said   [payee"],  he,  said  [payee],  wrongfully 
diverted  said  note  from  the  purpose  for  which  it  was 
given,  and  fraudulently  misapplied  the  same,  by  giving  it 
to  the  plaintiff  as  collateral  to  secure  the  payment  of 
said  claim. 

V.  That  the  plaintiff  is  not  a  bonafide  holder  of  the 
note  in  suit  for  a  valuable  consideration;  but  received 
the  same  with  notice  of  the  foregoing  facts,  and  as  col- 
lateral to  secure  the  payment  of  an  antecedent  debt,  and 
without  paying  any  consideration  therefor. 

VI.  This  defendant  denies  each  and  every  allegation 
of  the  complaint  inconsistent  with  the  foregoing  state- 
ment. 


57.  Form. — This  form  is  from  Abbotts'  Forms,  No.  864.  It  con- 
stitutes prima  facie  a  good  defense.  It  is  not  necessary  to  allege  that 
defendant  has  been-  injured  by  the  diversion.  It  is  incumbent  upon 
the  plaintiff  to  show  that  he  has  not  been  injured.  Rochester  v. 
Taylor,  23  Barb.  18. 


832  FORMS    OF     ANSWERS. 

58.  Assignment  before  Maturity. — If  the  complaint,  in  an 
action  by  the  assignee  of  a  promissory  note  against  the  maker,  avers 
that  the  note  was  assigned  to  the  plaintiff  for  a  valuable  consideration, 
before  maturity,  and  is  sworn  to,  an  answer  which  denies  that  the  note 
was  for  a  valuable   consideration  indorsed  and  delivered  by  the  payee 
to  the   plaintiff  before  maturity,  or  at  any  other  time,  does  not  put  in 
issue  the  fact  of  the  assignment  before  maturity;  but  if  it  puts  in  issue  any- 
thing, it  is  only  the  allegation  that  the  assignment  was  made  for  a  valuable 
consideration.   (Morrill  v,  Morrill,  26  Cal.  288.)   In  an  action  on  a  note, 
a  plea  that  the  note  has  been  assigned  should  be  supported  by  some 
proofs  that  the  beneficial  interest  is  still  in  the  assignee.     Assignments 
are  often  made  to  banks  for  the  mere  purpose  of  collection.     (Conant 
v.  Willis,  i  McLean,  427;  compare    Hartshorn  v.  Green,  i  Minn.  92.) 
Commercial  paper  transferred  before  maturity  as  collateral  security  for 
a  pre-existing  debt  is  not  subject  to  the  defenses  of  payor  against  payee. 
Payne  v.  Bensley,  8  Cal.  260;  Naglee  v.  Lyman,  14  Cal.  450. 

59.  Real  Party. — That  plaintiff  is  not  the  holder  and  owner  of  a 
note,  nor  the  real  party  in  interest,  should  be  specially  alleged,  showing 
how  and  why  he  is  not  the  real  party  in  interest.     (Arthur  v.  Beales,  i 
Ex.  608 ;  Fraser  v.  Welsh,  8  M.  &  W.  609 ;  Barber  v.  Lemon,  1 2  Jur. 
246;  Rogers  v.  Chilton,  17  Law  Jour.  Ex.  8-345;  De  Santes  v. Searle, 
1 1  Hoiv.  Pr.  477.)     It  is  not  a  good  plea  to  allege  that  a  note  sued  on 
is  the  property  of  another,  and  not  of  the  plaintiff,  without  showing 
some  substantial  matter  of  defense  against  the  one  asserted  to  be  the 
owner,  and  which  could  not  be  set  up  against  the  plaintiff.     Gushee  v. 
Leavitt,  5  Cal.  16. 

60.  Want  of  Consideration. — A  plea  of  want  of  consideration, 
in  an  action  on  a  bill  of  exchange,  must,  besides  showing  the  circum- 
stances, distinctly  allege  that  there  was  no  other  consideration  than  that 
mentioned.   (Boden  v.  Wright,  12  C.  B.  445.)  Under  an  answer  merely 
averring  that  the  note  was  not  for  want  of  consideration,  and  that  the 
plaintiffs  are  not  bona  fide  holders,  the  defense  of  usury,  though  it 
appears  by  the  evidence  on  the  trial,  is  not  available.    (Mechanics'  Bank 
of  Williamsburgh  v.  Foster,  44  Barb.  87;  S.C.,  19  Alb.  Pr.  47;  and  29 
How.  Pr.  208.)     A  partial  failure  of  consideration  cannot  be  pleaded 
in  bar  of  an  action  upon  a  note  given  for  the  purchase-money  of  land. 
Reese  v.  Gordon,  19  Cal.  147. 


ANSWERS — SUBDIVISION  SECOND. 

On  Breaches  of   Contracts. 


CHAPTER.  I. 

ON    BUILDING   CONTRACTS. 

JVo.  683. 

i.     Work  not  Finished,  and  Architect's  Certificate  not  Obtained. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  said  work  was  not  completed  in  a  good 
and  workmanlike  manner,  on  or  before  the  day  limited 
therefor,  in  the  contract  set  forth  in  the  complaint;  but 
on  the  contrary,  the  said  work  on  that  day,  and  from 
thence  to  the  commencement  of  this  action,  was,  and 
still  is,  incomplete  and  unfinished. 

II.  That  no  certificate  from  the  said  architect,  that  the 
said  work  had  been  completed  to  his  satisfaction,  was 
obtained  by  the  plaintiff  before  this  action. 

1.  Counter  Claims. — Plaintiff  sues  for  balance  due  on  a  contract 
for  erecting  a  building,  and  a  small  sum  for  extra  work.  Defendant 
seeks  to  offset  a  claim  for  two  and  one-third  months'  rent  lost  by  him, 
because  of  the  neglect  of  plaintiff  to  finish  the  building  within  the  time 
specified  in  the  contract,  defendant  having,  at  the  date  of  the  contract, 

53 


834  FORMS    OF    ANSWERS. 

leased  the  building  to  responsible  tenants,  the  lease  to  take  effect  from 
the  time  named  in  the  contract  for  its  completion.  Held,  that  defend- 
ant cannot  offset  his  rents,  because  the  circumstances  show  that  the 
contract  was  modified  by  the  parties  as  to  the  time  for  the  completion 
of  the  building.  McGinley  v.  Hardy,  18  Cal.  115. 

2.  Special  Plea. — That  the  work  was  done  in  an  unworkmanlike 
manner  must  be  specially  set  up  in  the  answer.  Kendall  v,  Vallejo, 
i  Cal.  371;  People  v.  Sabin,  10  Id.  22;  Laraway  v.  Perkins,  10 
N.F.  371. 


CHAPTER  II. 

ON    CHARTER    PARTIES. 

No.  684. 

ii.    Denial  of  Offer  to  Perform. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  at  the  time  fixed  by  the  agreement  referred 
to  in  the  complaint,  the  plaintiff  was  not  ready  or  wiling 
or  in  a  condition  to  recieve  the  merchandise  mentioned 
in  the  said  agreement  [or  any  part  thereof]. 


1.  Note. — That  no  demurrage  can  be  recovered  by  an  owner  for  a 
detention  occasioned  either  by  the  misconduct  of  the  master,  for  which 
the  owner  alone  was  answerable,  or  to  avoid  danger,  and  not  by  any 
misconduct  or  any  breach  of  covenant  by  the  charterer,  Hool  v. 
Groverman,  i  Cranch,  214. 


CHAPTER  III. 

ON   COVENANTS. 

No.  685. 

i.     Denial  of  Covenanf. 
[TITLE.] 

The  defendant  answers  to  the  complaint  :t 

That  he  did  not  covenant  or  agree  with  the  plaintiff 
as  alleged,  or  at  all. 

1.  Non  Est  Factum. — Under  a  plea  of  non  est  factum  to  an 
action  of  covenant,  it  is  competent  to  show  a  variance  between  the  deed 
offered  in  evidence  and  that  declared  on.  (Treat  v.  Brush,  1 1  Mo.  310.) 
What  defenses  are  admissible  in  actions  of  covenants,  see  Wilder  v. 
Adams,  2  Woodb.  &  M.  329;  United  States  v.  Clarke,  Hempst.  315; 
Gill  v.  Patton,  i  Cranch  C.  Ct.  143;  Wise  v.  Resler,  2  /</.  182;  Scott 
v.  Lunt,  3  Id.  285;  Kurtz  v.  Becker,  5  Id.  671. 

No.  686. 

ii.     The  Same — Denial  of  Breach. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and 
alleges: 

That  the  defendant  duly  performed  said  covenant 
[or  all  the  conditions  of  said  contract]  on  his  part;  and 
\_here  state  performance,  pursuing  the  words  of  the 


836  FORMS    OF    ANSWERS. 

covenant,  if  it  be  in  the  affirmative ;  and  stating  par- 
ticular acts,  if  it  be  in  the  alternative,  in  any  case 
where  this  can  be  done  without  too  great  prolixity\ . 


2.  Assignment. — A  plea  alleging  an  assignment  of  a  covenant 
to  pay  rent  by  the  plaintiff  to  a  third  person,  should  aver  the  form  of 
the  assignment,    whether   verbal  or'  in   writing.     Thomas  v.  Cox,  6 
Mo.  506. 

3.  Counter  Claim. — In  an  action  at  law  to  recover  damages  for 
failure  to  comply  with  a  covenant  to  indemnify  plaintiff  against  liabili- 
ties, the  defendant  cannot  set  up,  as  a  counter  claim,  demands  which 
were  matters  of  partnership  between  the  parties.     Haskell  v.  Moore, 
29  Cal.  437. 

4.  Performance. — Where  the  plaintiff  has  assigned  a  particular 
breach,  a  general  plea  of  performance,  pursuing  the  words  of  the  con- 
tract, is  bad.     (Bradley  v.  Osberhoudt,  13  Johns.  404;  Beach  v.  Bar- 
rows, 13  Barb.  305.)     Performance  must  be  set  forth  with  such  cer- 
tainty as  to  enable  the  Court  to  judge  whether  the  intent  of  the  covenant 
has  been  fulfilled — e.g.,  the  defendant  should  aver  not  that  he  sold,  but 
that  he  conveyed,  setting  forth  the  nature  of  the  conveyance.    (Thomas 
•v.  Van  Ness,  4  Wend.  549.)    In  Pennsylvania,  the  defendant  may  plead 
performance,  with  leave  to  give  in  evidence  anything  which  amounts 
to  a  legal  defense,  and  may  introduce  such  evidence  without  notice  of 
the  real  defense  he  intends  to  set  up.     (Webster  v.  Warren,  2  Wash. 
C.  Ct.  456;  compare  Gill  v.  Patton,  i   Cranch  C.  Ct.  143. 


CHAPTER  IV. 

ON  EMPLOYMENT. 

No.  687. 

i.   Denial  of  Contract. 
[TITLE.] 

The    defendant    answers    to    the    complaint,   and 
denies: 

That  he  did  agree  with  the  plaintiff  as  alleged,  or 
at  all. 

No.  688. 

ii.    The  Same — Denial  of  Plaintiff's  Performance. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  has  not  performed  the  conditions  of 
said  agreement  on  his  part;  but,  on  the  contrary,  has 
wholly  omitted  [here  state  breacJi\. 

No.  689. 

iii.    The  Same — Performance  by  Defendant. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  made  the  said  \articles\  furniture,  and  on  the 

....  day  of ,  1 8 .  . ,  delivered  the  same  to  the 

plaintiff,  in  every  respect  as  agreed. 


838  FORMS    OF    ANSWERS. 

JVo.  690. 

iv.    The  Same — Excuse  for  Non- Performance. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  at  the  time  of  making  said  agreement,  the 
plaintiffs  agreed  with  this  defendant,  that,  in  considera- 
tion that  he  would  deliver  to  them,  at  their  store  in 

[stale  wkaf\,  they,  the  said  plaintiffs,  would 

pay  this  defendant  [state  amount,  and  when  and  where  to 
be  paid\. 

II.  That  the  said  plaintiffs  failed  and  refused  to  pay 
the  same  on  the  delivery  of  said  articles  at  said  store. 


1.  Master  and  Servant. — To  an  action  for  breach  of  an  inden- 
ture of  apprenticeship,  the  defendant,  the  apprentice's  father,  pleaded  that 
the  apprentice  "  was  and  is  prevented  by  act  of  God,  to  wit,  by  perma- 
nent illness,  happening  and  arising  after  the  making  of  the  indenture, 
from  remaining  with  or  serving  the  plaintiff  during  all  said  term." 
Held,  on  demurrer,  a  good  plea  in  excuse  of  performance,  without  any 
averment  that  the  plaintiff  had  notice  of  the  illness  before  the  com- 
mencement of  the  action.  Boast  z».  Firth,  Law  Rep.  4  C.  P.  i . 


CHAPTER  V. 

ON    INDEMNITY. 

No.   691. 

Denial  of  Performance. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
denies: 

I.  That   the    plaintiff  performed   the  conditions,  or 
any  of  the  conditions,  on  his  part,  in  the  said  agreement 
referred  to  in  the  complaint. 

II.  [Allege  negligence  in  defending  the  action  for 
which  he  was  sued,  and  want  of  notice  to  the  defendant 
of  the  pendency  of  the  same.~\ 


1.  Liability. — Where,  upon  the  dissolution  of  two  co-partnerships, 
the  defendant  executed  an  agreement  to  indemnify  and  keep  L.  [one 
of  the  partners]  "  harmless  from  and  against  all  debts  due  and  owing 
from  the  late  firms:"  Held,  that  under  this  clause  of  the  agreement 
the  covenantor  was  not  liable  until  something  had  been  paid  by  L. 
17  Johns.  239,  479;  7  Wend.  499;  i  Hill,  145;  i  N. -K  5 50;  15  Wend. 
503;  i  Sound,  ii 6;  i  B.  &  P.  638;  7  T.  R.  93;  Wright  v.  Whiting, 
40  Barb.  ,235. 

2.  Negligent    Defense. — Where   one   holding   an   indemnity 
against  all  actions  and  all  damage  by  reason  of  a  certain  claim,  is  sued 
thereon,  and,  having  a  probably  ample  defense,  undertakes  to  defend  it 
without  calling  on  the  obligor  in  the  indemnity,  and  omits  to  set  up  such 
defense,  and  by  utter  neglect,  fails  in  the  suit,  he  cannot  afterwards  en- 


840  FORMS     OF     ANSWERS. 

force  the  indemnity.     Bridgeport  Fire  and  Marine  Insurance  Co.  v. 
Wilson,  7  Bosw.  427. 

3.  Release. — Defendant  made  a  valid  agreement  with  three 
partners  not  to  do  business  in  a  certain  place;  two  of  said  partners  sold 
out  to  the  third,  and  left  said  place;  said  third  re-sold  the  business  to 
defendant,  and  released  said  agreement.  Held,  that  the  other  two 
partners  could  not  sue  for  a  breach,  as  the  agreement  was  incident  only 
to  the  business.  Gompers  v.  Rochester,  56  Penn.  194. 


CHAPTER   VI. 

ON   PROMISE    OF    MARRIAGE. 

JVo.  692. 

i.     Denial  of  Promise. 
[TITLE.] 

The  defendant  answers  to  the.  complaint,  that  he  never 
promised  to  marry  the  plaintiff. 

JVo.  693. 

ii.     Denial  of  Plaintiff's   Readiness  and  Offer  to   Marry. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies 
that  the  plaintiff  has  been  ready  or  willing  to  marry 
the  defendant,  or  that  he  ever  did  offer  to  marry  her 
as  alleged,  or  at  all. 


ON     PROMISE    OF    MARRIAGE.  84! 

No.  694. 

iii.     Denial  of  Breach. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies: 

That  the  defendant  has  refused  to  marry  the  plaintiff, 

but  on  the  ....  day  of ,  1 8 .  . ,  and  ever  since,  he 

has  been  ready  and  willing  to  marry  her,  but^t  the  date 
above  mentioned,  and  at  all  time  since  then,  the  plaintiff 
has  refused  to  marry  this  defendant. 

JVo.  695. 

iv.      That   Plaintiff  was  _  of  Bad  Character. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  at  the  time  mentioned  as  the  time  of  said 
supposed  promise,  the  plaintiff  was  unchaste. 

II.  That  defendant  was  ignorant  thereof  at  that  time. 

III.  That  upon  being  informed  thereof,  he  refused  to 
marry  the  plaintiff. 

JVo.  696. 

v.     Another  Form. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.   That  at  the  time  mentioned  as  the  time  of  said 

supposed  promise,  and  on  the  ....  day  of , 

1 8 .  . ,  at ,  the  plaintiff,  without  the  connivance 


842  FORMS   OF   ANSWERS. 

of  the  defendant,  had  carnal  connection  with  one  C.  D. 

II.   That  upon  being  informed  thereof,  he  refused  to 
marry  the  plaintiff. 


1.  Misconduct. — See,  as  to  the  necessity  of  interposing  a  special 
plea  of  misconduct  on  the  part  of  the  plaintiff,  when  relied  upon  as  a 
defense,  Button  v.  McAuley,  38  Barb.  413. 


CHAPTER  VII. 

ON    SALE    AND     DELIVERY    OF    CHATTELS. 

No.  697. 

i.    Explaining  the  Contract,  and  Showing  a  Breach  as  to  Delivery. 
[TITLE."! 

The  defendant  answers  to  the  complaint: 

I.  That  it  was  a  part  of  the  agreement  referred  to  in 
the  complaint,  that  the  plaintiff  should  deliver  the  goods 
sold  at  

II.  That  the  said  goods  have  not  been  so  delivered. 


1.  Damages  by  Way  of  Recoupment. — Damages  sustained 
by  a  vendee  of  goods  by  reason  of  his  inability  to  comply  with  a  con- 
tract made  by  him  with  a  third  person,  do  not  legally  result  from  a 
breach  of  the  contract  of  his  vendor  to  deliver  the  goods  to  him,  and, 
in  an  action  by  his  vendor  against  him,  cannot  be  recouped  from  the 
plaintiff's  claim,  unless  such  damages  are  specially  alleged  and  set  forth 
in  the  answer.     Cole  v.  Swanston,  i  Cal.  51. 

2.  Disclaimer. — It  is  not  a  sufficient  objection  to  the  plea,  that 


ON    SALE    AND    DELIVERY.  843 

it  omits  a  disclaimer  of  the  contract,  and  a  proffer  to  return  the  prop- 
erty. If  the  defendant  looked  only  to  a  mitigation  of  damages,  he 
was  not  bound  to  do  either,  and  therefore  was  not  bound  to  make  such 
an  averment  in  his  plea.  Sheppard  v.  Graves,  14  How.  U.S.  505. 

3.  Estoppels. — A  party  retaining  goods  delivered  under  an  execu- 
tory contract,  without  objection,  held  estopped  from  afterwards  denying 
their  value.     Fisher  v.  Merwin,  i  Daly,  234. 

4.  Insufficient  Answer. — If  the  complaint  avers  the  sale  and 
delivery  to  defendant  of  goods,  and  the  value  of  the  same,  an  answer 
which  denies  the  indebtedness,  but  does  not  deny  the  facts  of  the  sale 
and  delivery  and  amount  of  goods,  does  not  raise  an  issue,  as  it  only 
denies  the  legal  conclusion  resulting  from  the  facts.     Lightner  v.  Meri- 
zell,  35  Cal.  452. 

5.  Tender. — A  tender  of  warehouse  receipts  for  grain,  issued  by 
responsible  parties,  is  a  sufficient  tender  of  the  grain  in  Chicago,  unless 
objected  to  by  the  other  party  at  the  time.     (McPherson  v.  Gale,  40 
///.  368.)     After  a  sale  at  uuyer's  option  within  a  certain  time,  notice 
by  the  buyer  before  the  time  has  expired  that  he  will  not  accept  the 
goods  within  or  at  the  end  of  such  time,  waives  a  tender  by  the  seller. 
(McPherson  v.  Walker,  40  HI.  371;  see  White  v.  Dobson,  17  Graf. 
(Va.)  262;  Millingar  v.  Daly,  56  Penn.  St.  245.)     A  plea  to  an  action 
on  a  bond  to  deliver  goods  at  a  certain  time  and  place,  Should  state 
that  the  defendant  was  at  the  place  appointed,  in  person,  or  by  his  agent, 
ready  to  deliver,  etc.     Savary  v.  Goe,  3  Wash.  C.  Ct.  140. 


No.  698. 

ii.     The  Same — Breach  of  Warranty  by  Plaintiff. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  goods  therein  mentioned  were  warranted 
by  the  plaintiff  to  be  [genuine  French  broadcloth] . 

II.  That   they  were   not   [genuine   French   broad- 
cloth]. 


844  FORMS    OF    ANSWERS. 

No.  699. 

i\\.     The  Same,   as  to  Quality. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  it  was  a  part  of  the  agreement  referred  to 
in  the  complaint,  that  the  wheat  therein  mentioned 
should  be  of  a  first  class  milling  quality. 

4  II.    That  the  said  wheat  was  not  of  a  first  class  mill- 
ing quality. 


6.  Defect  in  Quality. — Where  a  seller  at  the  time  of  the  sale 
agrees  that  if  the  goods  when  delivered  are  inferior  to  the  sample  they 
may  be  exchanged,  it  is  a  conditional  sale,^nd  the   inferiority  of  the 
goods  is  no  defense  to  an  action  for  the  price.     (Fisher  v.  Merwin,  i 
Daly,  234.)    A  defect  of  quality  in  goods  sold  does  not,  in  the  absence 
of  fraud  or  warranty,  constitute  a  defense  to  the  note  given  for  the 
price  or  any  part  of  it.     (Gillespie  v.  Torrance,  25  N.Y.  306.)    This 
rule  applied  where  the  note  was  that  of  a  third  party.     (25  N.Y.  306; 
4  Bosw.  36;  Deland  v.  Rawson,  10  Bosw.  286.)     Suit  on  note  for  the 
purchase  of  land.     Answer  set  up  that  the  note  was  given  for  the  land, 
fencing  and  building  materials;   that  plaintiff  falsely  represented  that 
there  was  building  material  for  building  a  barn;   that  this  material  was 
so  insufficient  in  quantity  that  it  cost  six  hundred  dollars  to  buy  more, 
etc.     There  were  some  averments  as  to  the  rotten  condition  of  fences, 
which  plaintiff  represented  to  be  good.     Held,  that  defendant  having 
taken  possession  under  the  contract,  and  retaining  it,  cannot  set  up 
representations,  fraudulent  or  otherwise,  as  to  fences,  they  being  in  this 
case  part  of  the  freehold.     Held,  further,  that  a  special  demurrer  being 
put  into  the  answer,  it  sets  up  no  defense  as  to  the  building  material, 
because  neither  quantity  nor  value  is  given.      Plaintiff  is  responsible, 
not  for  what  defendant  paid  for  lumber,  but  for  the  value  of  lumber 
contracted  for,  and  not  delivered,  and  this  at  the  time  of  contracting. 
Kinney  v.  Osborne,  14-  Cal.  112. 

7.  Executing  Contracts. — Where  defendants  order  of  plaintiffs 


ON    SALE    AND    DELIVERY.  845 

goods  of  a  certain  description,  which  were  to  be  procured  by  the 
plaintiff  from  abroad,  and  the  goods  delivered  did  not  answer  the 
order:  Held,  that  the  doctrine  of  caveat  emptor  had  no  application,  the 
contract  being  executory,  and  defendants  might  recoup  from  the  price 
of  the  goods  their  damages  for  the  defect  in  quality,  although  no  fraud 
was  charged  against  the  plaintiff.  (Renand  v.  Peck,  2  Hill.  137.)  If 
a  drove  of  pigs  are  sold,  with  warranty  that  they  are  sound,  and  some 
of  them  have  an  infectious  disease  at  the  time  of  the  sale,  and  others 
take  it  afterwards,  the  purchaser  may  recoup  the_  damage  so  caused,  as. 
well  after  the  sale  as  before,  when  sued  for  the  price.  Bradley  v.  Rea, 
14  All.  20. 

8.  Recoupment. — In  an  action  for  the  price  of  goods  sold  and 
delivered,  there  being  a  warranty  as  to  the  quality  of  the  goods,  the 
breach  of  the  warranty  may  be  relied  on  in  defense,  by  way  of  recoup- 
ment, to  mitigate  the  amount  recovered;  but  it  is  not  available  as  a  com- 
plete defense  to  the  action.  (Earl  v.  Bull,  15  Cal.  425.)  The  plea  of 
non  est  factum  is  a  nullity  in  an  action  of  debt  on  simple  contract. 
(Gebhart  v.  Francis,  32  Penn.  78.)  The  plea  of  non  est  factum  did 
not  admit  the  plaintiff's  damages.  (Bennett  v.  Brown,  31  Barb.  158.) 
Where  the  defendant  pleaded  that  the  obligation  was  given  for  horses, 
which  did  not  prove  to  be  sound  or  of  as  high  a  pedigree  as  had  been 
represented  to  the  seller,  the  plea  was  admissable  if  the  defendant 
looked  only  to  the  mitigation  of  damages.  Withers  v.  Greene,  9  How. 
U.S.  213,  661. 


CHAPTER  VIII. 

ON    SALE    OF    REAL    PROPERTY. 

No.  700. 

i.    Denial  of  Agreement. 
[TITLE.] 
The  defendant  answers  to  the  complaint: 

That  he  did  not  agree  with  the  plaintiff  as  alleged, 
or  at  all. 


846  FORMS    OF     ANSWERS. 

No.  701. 

ii.    Dental  of  Plaintiff's  Performance. 
[TITLE.  1 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  has  not  performed  the  conditions  of 
said  agreement  on  his  part;  buth  on  the  contrary,  has 
wholly  omitted  \Jiere  state  breach,  as  if  in  a  complaint 
against  him.~\ 

1.  Fraud. — A  fraud,  or  breach  of  warranty,  must  be  specially 
alleged  in  the  answer,  in  order  to  be  admissible  in  proof.  (Deifendorf 
v.  Gage,  7  Barb.  18.)  The  mere  fact  that  a  vendor  of  land  was  aware 
of  the  existence  of  a  judgment,  which  was  an  incumbrance  on  the  land  at 
the  time  of  his  sale,  and  failed  to  inform  the  vendee  of  the  existence  of 
such  judgment,  is  not  a  fraud  so  as  to  constitute  a  defense  to  suit  on  a 
note  for  the  purchase-money,  where  the  means  of  information — to  wit, 
the  county  records — were  equally  accessible  to  both  parties.  In  such 
case,  if  the  vendee  neglect  to  inform  himself,  he  is  guilty  of  negligence, 
and  cannot  set  up  his  ignorance  as  a  ground  of  fraud,  unless  by  deceit 
or  misrepresentation  he  has  been  misled.  Ward  v.  Packard,  18 
Cal  391. 

No.  702. 

iii.     The  Same. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  plaintiff  warranted  the  property  therein 
mentioned  to  be  free  from  all  incumbrances. 

II.  That  there  was  then  and  still  is  a  mortgage  on 
the  same,  in  the  sum  of dollars,  unsatisfied  of 


ON  SALE  OF  REAL  PROPERTY.          847 

record,  in  Book  . . . . ,  page  .  . . . ,  of  Mortgages,  in  the 

office  of  the  Recorder  of  the  County  of ,  in 

this  State. 


NOTE. — This  form  is  from  the  New  York  Code  Commissioners' 
Book  of  Forms. 


CHAPTER  IX. 

ON    UNDERTAKINGS,    BONDS,    ETC. 

JVo.  70S. 

i.    Failure  of  Consideration. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  he  gave  said  undertaking  to  said  A.  B.,  solely 
in  consideration  of  the  performance  by  said  A.  B.  of  the 
covenants  and  conditions,  upon  his  part,  in  an  agree- 
ment then  made  between  them,  of  which  agreement  a 
copy  is  annexed  as  a  part  of  this  answer. 

II.  That  this  defendant  duly  performed  all  the  condi- 
tions thereof  on  his  part. 

III.  That  the  said    [allege   breach  as  in  an  action 
upon  the  contract] . 


1.  Assignment. — Where  a  clerk  of  a  court  was  sued  upon  his 
official  bond,  and  the  breach  alleged  was  that  he  had  surrendered  certain 
goods  without  taking  a  bond  with  good  and  sufficient  securities,  and  the 
plea  was  that  the  bond  which  had  been  taken  was  assigned  to  the 
plaintiffs,  who  had  brought  suit,  and  received  large  sums  of  money  in 


FORMS     OF    ANSWERS. 

discharge  of  the  bond,  this  plea  was  sufficient,  and  a  demurrer  to  it  was 
properly  overruled.  •  Bevins  v.  Ramsey,  15  How.  U.S.  179. 

2.  Avoidance. — Matters  in  avoidance  of  a  sealed  instrument  must 
be  pleaded  specially.     (Greathouse  v.  Dunlap,  3  McLean,  303.)     A  plea 
which  alleges  that  the  bond  sued  on  was  obtained  fraudulently,  that  its 
consideration  was  the  price  of  chattels  sold  at  auction,  on  which  he,  in 
order  to  induce  bids  by  others,  bid  five  hundred  dollars,  well  knowing 
that  the  said  chattel  was  unsound,  and  that  the  defendant  had  offered  to 
return  the  chattel,  is  good.     Casey  v.  Smales,  4  Mo.  77. 

3.  Consideration   Controverted. — The  law  imports  a  consid- 
eration to  a  sealed  instrument  from  its  seal.     At  common  law,  a  want 
of  consideration  could  not  be  pleaded  to  a  suit  on  a  sealed  instrument, 
the  presumption  of  a  consideration  being  absolute  and  conclusive. 
The  Statute  of  this  State  has  not  altered  the  presumption  of  a  consid- 
eration which  still  accompanies  the  instrument,  but  only  modified  the 
rule  so  far  as  to  allow  it  to  be  rebutted  in  the  answer.     McCarty  v. 
Beach,  10  Cal.  461;  Wills  v.  Kempt,  17  Cal.  96. 

4.  Date  of  Payment. — A  bond  for  the  performance  of  a  duty, 
and  for  an  indemnity,  is  not  within  the  provision  of  that  statute  which 
allows   the   plea   of    payment  after  the   day.     (Hart   v.   Meeker,    i 
Sandf.  623.)     A  plea  of  payment  of  part  of  a  bond,  and  acceptance 
in  full,  is  bad.     Doderick  v.  Leman,  9  Johns.  333. 

5.  Defective  Answer. — In  an  action  on  an  undertaking  exe- 
cuted by  and  on  behalf  of  the  defendants,  in  a  judgment  in  ejectment, 
conditioned  to  pay  the  value  of  the  use  and  occupation  of  the  premises 
pending  the  appeal,  an  answer  setting  up  that  pending  the  appeal  the 
plaintiff  conveyed  a  part  of  the  premises  to  one  or  more  of  the  defend- 
ants in  the  judgment,  and  had  leased  portions  to  other  parties,  does  not 
state  facts  sufficient  to  constitute  a  defense.     (De  Castro  v.  Clark,  20 
Cal.  n.)     Such  answer  failing  to  show  when  the  conveyance  was  made, 
it  will  be  deemed  not  to  have  been  made  until  the  last  day  the  appeal 
was  pending.     (Id.}     Such  answer  is  also  defective  in  not  stating  that 
the  use  and  occupation  of  the  portions  of  the  premises  conveyed  and 
leased  was  of  any  value.     (Id. )     In  an  action  on  an  undertaking  given 
in  suing  out  an  injunction,  the  defendants  cannot  object,  by  way  of  de- 
fense, that  the  business  which  they  enjoined  was  a  public  nuisance. 
(Cunningham  v.  Breed,  4  Cal.  384.)     Conceding  that  there  is  a  neces- 
sary discrepancy  between  the  condition  and  the  penal  portion  of  the 


ON    UNDERTAKINGS,    BONDS,  ETC.  849 

bond,  it  cannot  be  set  up  by  the  obligors,  as  the  bond  would  be  single, 
and  in  a  suit  thereon  the  plaintiff  would  be  entitled  to  the  full  amount. 
Swain  v.  Grave,  8  Cal.  549. 

6.  Duplicity. — In  an  action  on  a   bond  for  the  payment  of  cer- 
tain sums  of  money  at  Amsterdam,  the  plea  was  that  the  money  was 
paid.     Replication,  that  the  sum  paid  was  not  accepted  in  satisfaction 
by  the  agents  of  the  plaintiffs;  that  the  sum  was  not  paid  on  the  day 
appointed ;  and  that  damages  and  interest  due  for  non-payment  were  not 
paid.     The  pleas  were  bad  for  duplicity.     (United  States  v.  Gurney,  i 
Wash.  C.  Ci.   446;  affirmed,  4  Cranch,  338.)     In  an  action  against  a 
surety,  one  plea  alleged  a  discharge  of  the  defendant  by  the  neglect  of  the 
plaintiff  to  sue  the  principal  upon  notice  so  to  do.     Another  plea  set  up 
a  discharge  owing  to  an  extension  of  the  time  of  payment.     //  seems  that 
the  pleading  was  bad  for  duplicity.     Taylor  v.  Davis,  38  Miss.  493. 

7.  False  Representations. — A  false   representation  made    by 
the  principal  to  a  surety  on  a  bond  before  his  signing  the  same,  that  a 
party  whose  name  appeared  thereon  as  surety  had  signed  said  bond, 
will  discharge  said  surety.     Chamberlain  v.  Brewer,  3  Bush,  561. 

8.  Former  Action. — In  an  action  upon  a  sheriffs  official  bond, 
the  pendency  of  a  former  action  upon  the  same  bond  may  be  pleaded 
in  bar;  and  if  found  by  the  verdict,  the  plea  is  good.     Commonwealth 
v.  Cope,  45  Penn.  161. 

9.  Insanity. — Insanity  is  not  a  defense  on  an  injunction   bond, 
it  not  appearing  that  plaintiff  knew  the  fact.     Behrens  v.  McKenzie,  23 
Iowa,  333. 

10.  Insufficient  Defense. — A  defendant  cannot  plead  that  the 
only  evidence  of  a  breach  of  bond  consists  in  a  certain  paper,  and  then 
proceed  to  show  that  such  paper  does  not  prove  a  breach.     He  is  not 
allowed  to  make  the  case  turn  on  his  allegation  concerning  the  proofs  of 
his  adversary.     United  States  v.  Girault,  n  How.  Pr.  22. 

11.  Joint  Plea. — A  plea  which  is  entire  cannot  be  good  in  part, 
and  bad  in  part,  an  entire  plea  not  being  divisible:  and,  consequently,  if 
the  matter  pleaded  be  insufficient  as  to  one  of  the  parties,  it  is  so  in  Mo. 
On  a  joint  plea,  therefore,  of  non  est  factum  to  a  bond,  if  the  bond  is  the 
deed  of  any  of  the  defendants,  the  plea  is  bad  as  to  all,  and  the  plaintiff  is 
entitled  to  judgment.     United  States  v.  Lynn,  i  How.  Pr.  104;  S.C., 
17  Pet.  38. 

54 


850  FORMS    OF    ANSWERS. 

12.  Novation. — Taking  a  note  from  the  obligor  in  a  bond  paya- 
ble in  terms  at  the  same  time  as  the  bond,  and  for  the  game  debt,  dis- 
charges the  sureties  on  the  bond,  because  the  days  of  grace  have  to  be 
added  before  the  note  is  payable,  and  so  time  is  given  to  the  principal. 
(Appleton  v.  Parker,  15  Gray,  173.)     Where  an  answer  contains  an 
allegation  of  alteration  in  an  instrument,  it  must  state  that  such  altera- 
tion was  made  with  the  knowledge  or  consent,  or  by  the  authority  of 
the  plaintiff.     Humphreys  v.  Crane,  5  Cal.  173. 

13.  Positive  Averments. — Every  plea  in  discharge  or  avoidence 
of  a  bond  should  state  positively  and  in  direct  terms  the  matter  in  dis- 
charge or  avoidance,  and  not  leave  the  defense  relied  on  to  be  inferred. 
(United  states  v.  Bradley,  10  Pet.  343;  compare  Mayor  of  Alexandria 
v.  Moore,  i   Cranch  C.  Ct.  440;  Wood  v.  Franklin,  3  Id.  115;  Tucker 
v.  Lee,  Id.  684.)     A  plea  seeking  "to  avoid  a  bond  for  being  illegally 
taken  in  colore  officii,  should  specially  state  all  the  facts  which  show  that 
illegality.   United  States  v.  Sawyer,  i  Gall.  86. 

14.  Replevin. — In  an  action  on  the  bond,  the  fact  that  defendant 
brought  his  action  before  an  incompetent  tribunal  is  no  defense,  and 
the  plea  that  the  title  of  property  so  replevied  is  in  him,   is   bad. 
(McDermott  v.  Isbell,  4  Cal.  113.)     Where  the  defendant,  in  a  reple- 
vin suit,  failed  to  claim  the  return  of  the  property  in  his  answer,  and  on 
the  trial  the  jury  found  a  verdict  for  the  defendant,  on  which  the  Court 
rendered  judgment  against  plaintiffs  for  costs,  which  was  paid:  Held, 
that  the  payment  of  the  judgment,  as  taken,  was  a  complete  discharge 
of   plaintiffs'  sureties  on  the  undertaking.     Chambers   v.   Waters,   7 
Cal.  390. 

15.  Seals  not  Affixed. — A  plea,  alleging  merely  that  seals  were 
affixed  to  a  bond  without  the  consent  of  the  defendant,  without  also 
alleging  that  it  was  done  with  the  knowledge,  or  by  the  authority  or  di- 
rection of  the  plaintiffs,  is  not  sufficient.     United  States  v.   Linn,   i 
How.  U.S.  104. 

16.  Set-Off — Action  on  an  appeal  bond,  in  which  defendants  claim 
the  right  to  offset  the  balance  of  a  decree  in  a  foreclosure  suit,  which 
they  have  purchased  and  now  hold  against  J.  R.  D.  and  J.  T.  R.,  and 
eleven  other  defendants  in  that  suit,  upon  the  ground  that  J.  R.  D.  and 
J.  T.  R.  are  the  parties  beneficially  interested  in  the  claim  in  suit  in  this 
action,  and  that  they  and  the  other  eleven  defendants  in  the  decree 
sought  to  be  offset,  are  insolvent:  Held,   that  the  set-off  cannoj   be 


ON    UNDERTAKINGS,    BONDS,    ETC.  851 

allowed,  as  well  because  of  the  provisions  of  Section  forty-seven  of  the 
Practice  Act,  which  requires  a  counter  claim  to  be  between  parties  to 
the  record,  between  whom  a  several  judgment  might  be  had  in  the 
action,  as  of  the  provisions  of  Sections  one  hundred  and  seventy-six  and 
one  hundred  and  ninety-nine,  which  would  require  a  judgment  for  the 
excess  to  be  given  against  the  plaintiff,  although,  as  against  him,  it  is 
not  claimed  that  defendants  have  any  demand.  Held,  further,  that  the 
matter  set  up  in  the  answer  is  not  a  defense,  legal  or  equitable,  in  any 
other  sense  than  as  being  purely  an  offset,  and  therefore  such  matter 
cannot  be  relied  on  as  an  equitable  defense  independent  of  and  beyond 
the  right  of  offset  given  by  the  Practice  Act.  Duff  v.  Hobbs,  19 
Cat.  646. 

17.  Sufficient  Answer. — In  an  action  upon  an    undertaking 
which  was  given  upon  issuing  an  injunction,  and  was  conditioned  to 
pay  all  damages  sustained  thereby,  "if  the  Court  shall  finally  decide 
that  the  plaintiff  (in  the  injunction  suit)  was  not  entitled  thereto,"  if  the 
complaint  avers  that  judgment  has  been  rendered  in  the  injunction 
suit  in  favor  of  the  defendants,  but  does  not  disclose  the  ground  of  the 
judgment,  nor  aver  in  terms  that  the  Court  has  decided  that  the  plaintiff 
therein  was  not  entitled  to  the  injunction,  an  answer  merely  denying 
that  it  has  been  so  decided,  and  the  present  plaintiff  has  been  damni- 
fied, and  that  defendant  is  indebted  to  him,  is  not  irrelevant,  and  raises 
a  material  issue.     (McHenry  v.  Hazard,  45   Barb.  657.)     Nor  is  it 
shown  to  be  sham  by  an  affidavit  stating  that  the  complaint  in  the 
injunction  suit  was  dismissed,  but  not  disclosing  on  what  ground. 

18.  Void  Contract. — Whenever  a  contract  or  obligation  under 
seal  is  void  ab  inilio,  the  general  plea  of  non  est  factum  is  proper. 
Where  it  is  merely  voidable,  a  special  plea,  setting  forth  the  special 
circumstances,  is  necessary.     (2  Stra.  1,104;  Bull.  N.P.  172;  16  Mass. 
348;  14  Pick.  303;  Bottomley  v.  United  States,  i    Story.  C.  Ct.  135.) 
On  the  plea  of  non  est  factum  in  an  action  on  a  bond,  the  present 
validity  of  the  instrument  is  in  issue,  and  every  circumstance  that  goes 
to  show  that  it  is  not  the  deed  or  contract  of  the  party  is  provable. 
Speake  v.  United  States,  q  Crunch.  28. 


ANSWERS — SUBDIVISION  THIRD. 

Iniuries  to  the  Person. 


CHAPTER  I. 

ASSAULT   AND    BATTERY. 

No.  704. 

i.    General  Denial. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  defendant  has  not  committed  the  acts 
alleged,  or  any  one  of  them  [or,  the  defendant  denies 
each  and  every  allegation  thereof]. 

No.  705. 

'      ii.    The  Same — Denial  of  Battery, 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  defendant  did  not  strike  nor  wound  the 
plaintiff. 


1.  Aggravated  Circumstances  need  not  be  denied;  they  are  not 
traversable.  Schnaderbeck  v.  Worth,  8  Abb.  Pr.  37;  Gilbert  v.  Rounds, 
14  How.  Pr.  46;  "Lane  v.  Gilbert,  9  Id.  150. 


FOR    ASSAULT    AND    BATTERY.  853 

2.  Counter  Claim. — In  an  action  for  damages  for  an  assault  and 
battery,  a  libel  published  by  the  plaintiff  of  and  concerning  the  defend- 
ant does  not  constitute  a  counter  claim,  within  the  meaning  of  Section 
forty-seven  of  the  Practice  Act.     The  objection  to  such  counter  claim 
is  not  waived  by  a  failure  to  demur,  and  evidence  to  support  it  is  inad- 
missible.    Macdougall  v.  Maguire,  35  CaL  274. 

3.  Justification. — In  an  action  for  assault  and  battery,  and  false 
imprisonment,  a  special  plea  of  justification,  which  states  matters  which 
occurred  subsequent  to  the  suit,  is  bad  on  demurrer.     Lockington  v. 
Smith,  Pet.  C.  Ct.  466. 

4.  Mitigation  of  Damages. — In  an  action  for  assault  or  for 
false  imprisonment,  evidence  in  mitigation  of  damages  may  be  given, 
without  being  pleaded.     (Travis  v.  Barger,  24  Barb.  614;    Hays  v. 
Berryman,  6  JBosw.  679;  see,  however,  Poland  v.  Johnson,  16  Abb.  Pr. 
235.)     So,  evidence  in  mitigation  may  be  given  under  a  general  denial. 
Kneedler  v.   Sternberg,    10   How.  Pr.    68;    Dunlap  v.  Snyder,    17 
Barb.  561. 

5.  Threats. — A  previous  threat,  alone  and  unaccompanied  by  any 
immediate  demonstration  of  force  at  the  time  of  the  rencounter,  will 
not  justify  or  excuse  an  assault.    (People  v.  Scroggins,  Cal.  Sup.  Ct.,  Jul. 
T.,  1869.)    But  if  there  be  at  the  time  such  a  demonstration  of  force  as 
would  induce  a  well  founded  belief  in  the  mind  of  a  reasonable  per- 
son that  his  adversary  was  on  the  eve  of  executing  his  threat,  and  that 
his  only  means  of  escaping  from  death  or  great  bodily  injury  was  im- 
mediately to  defend  himself  against  the  impending  danger,  the  law  of 
self  defense  would  justify  him  in  the  use  of  whatever  force  was  neces- 
sary to  avert  the  threatened  peril.     Id. 


No.  706. 

iii.     The  Same — Self  Defense. 
[TITLE.]  . 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  first  assaulted  the  defendant,  who 
thereupon  necessarily  committed  the  acts  complained  of, 
in  self-defense. 


854  FORMS    OF    ANSWERS. 

6.  Justification. — One  is  justified  in  using  violence  in  defending 
himself  against  violence,  but  he  must  not  exceed  what  is  necessary  to 
self-defense.      (People  v.  Williams,  32  Cal.  280.)    People  v.  Camp- 
bell, 30  Cal.  312;  Scribner  v.  Beach,  4  Den.  448.)     An  assault  cannot 
be  justified  as  made  in  self-defense,  unless  the  danger  of  injury  is  so 
manifest  and  pressing  that  no  other  means  of  self  protection  are  imme- 
diately available.     Keyes  v.  Devlin,  3  E.  D.  Smith,  518. 

7,  Mutual  Violence. — Where  violence  is  committed  on  both 
sides,  there  cannot  be  a  recovery  by  both  parties  in  cross  action.     The 
party  who  first  recovers  may  plead  that  recovery  in  the  suit  against  him- 
self for  the  same  affray.     Hence  the  party  first  attacked  is  not  entitled 
to  maintain  an  action,  if  he  uses  violence  in  repelling  the  assault  ex- 
ceeding what  is  required  for  self-defense.    Salk.  642;  i  Ld.  Raym.  177; 
I  Bay.  351;  15  Mass.  347;  Elliotts.  Brown,  2  Wend.  497. 


No.  707. 

iv.     Acts  Done  to  Preserve  the  Peace. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  the  defendant  did  not  strike  or  wound  the 
plaintiff. 

II.  That  at  the  time  mentioned  in  the  complaint,  the 
plaintiff  made  an  assault  on  one  B.,  and  was  then  and 
there  beating-  him. 

III.  That  thereupon  the  defendant,  in  attempting  to 
preserve  the  peace,  and  prevent  the  plaintiff  from  further 
so  doing,  gently  laid  his  hands  upon  the  plaintiff,  by 
which  plaintiff  suffered  no  injury. 

IV.  That  the  acts  above  mentioned  are  the  same  of 
which  the  plaintiff  complains. 


FOR    ASSAULT    AND    BATTERY.  855 

JVo.  708. 

v.     Defense  of  Possession    of  Dwelling. 
[TITLE.] 

defendant  answers  to  the  complaint: 

I.  [Deny  beating  and  wounding] 

II.  The  defendant  further  alleges,  that  at  the  time 
mentioned  in  the  complaint,  the  defendant  was  lawfully 
possessed  of  \_here  designate  the  dwelling]. 

III.  That  the  defendant  being  so  possessed  thereof, 
the  plaintiff  was  unlawfully  therein,  and  [state  unlawful 
acts  he  was  doing~\. 

IV.  That  thereupon  the  defendant,  in  defense  of  the 
possession  of  his  dwelling,  gently  laid  his  hands  upon 
the   plaintiff  in  order  to  remove  him,  as  he  lawfully 
might. 

V.  That  the   acts  above  mentioned  are  the  same 
of  which  the  plaintiff  complains. 

No.  709. 

vi.    -The  Same — Resistance  of  Entry. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 
I.   and  II.    [As  in  preceding  form, .] 

III.  That  the  plaintiff  then  and  there,  with  force  and 
violence,  attempted  to  break  into  the  said  dwelling  \or 
other  possession],  without  the    leave    and  against  the 
will  of  the  defendant. 

IV.  That  the  defendant  thereupon,  in  order  to  pre- 


856  FORMS    OF    ANSWERS. 

serve  the  peaceable  possession  thereof,  resisted  the 
plaintiff's  entrance,  and  in  doing  so  necessarily 
assaulted  and  beat  the  plaintiff,  as  he  lawfully  might; 
and  if  the  plaintiff  sustained  any  damage,  it  was  oc- 
casioned by  his  own  wrong. 

V.     That  the  acts  above  mentioned  are  the  sarne  of 
which  the  plaintiff  complains. 

No.  710. 

vii.      Justification   by  Captain  of   Vessel. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  as  to  the  alleged  assaulting,  beating,  and  ill- 
treating  the  plaintiff,   the  defendant  was,  at   the  time 
thereof,  captain  of  the  ship,  called  the  ........ 

II.  That  the  plaintiff  was  then  on  board  of  said  ship 
as  a  seaman.     \State  excuse  for  beating  him,  such  as 
mutiny,  etc.~\ 

III.  Wherefore  the  defendant,  for  the  preservation 
of  the  peace,  and  to  preserve  due  order  on  said  ship 
\state  what  was  done\. 


8.  Justification   of  Master. — The  master  or  commander  of  a 
vessel,  in  general,  is  not  liable  for  chastisement  inflicted  on  a  seaman  or 
marine,  where  he  acted  under  a  sincere  conviction  that  it  was  neces- 
sary, to  enforce  discipline,  or  compel  obedience  to  orders,  and  not  from 
passion  or  revenge.     Dinsman  v.  Wilkes,  12  How.  Pr.  390;  Morris #. 
Connell,  Sprague,   62;    Sheridan  v.  Furbur,   i    Blatchf.  &  H.  423; 
United  States  v.  Freeman,  4  Mass.  505,  511;  Thompson  v.  Busch,  4 
Wash.  C.  Ct.  338;  Thome  v.  White,  Pet.  Adm.  168. 

9.  Misconduct,    Degrees    of. — So,   where   the     master    acts 


FOR   ASSAULT   AND    BATTERY.  857 

believing  from  the  circumstances  that  there  is  immediate  danger  from 
a  mutiny.  (Roberts  v.  Eldridge,  Spragve,  54;  United  States  v.  Colby, 
Id.  119;  United  States  v.  Lent,  Id.  311.)  What  degree  of  misconduct, 
or  circumstances  of  provocation,  on  the  part  of  a  seaman,  will  justify 
corporal  punishment  or  correction  by  an  officer,  see  (Morris  v.  Cor- 
nell, Sprague,  62;  Payne  v.  Allen,  Id.  304;  Sheridan  v.  Furbur, 
Blatchf.  &  If.  423.)  And  as  to  instruments  and  modes  of  punish- 
ment, see  Benton  v.  Whitney,  Crabbe,  417;  Shelter  v.  York,  Id.  449; 
Forbes  v.  Parsons,  Id.  283;  United  States  v.  Cutler,  i  Curt.  C.  Ct.  501; 
Saunders  v.  Burchup,  Blatchf.  &  ff.  264;  Shorey  v.  Rennel,  Sprague, 
467;  see  Noden  v.  Johnson,  2  Eng.  LawandEq.  201. 


No.  711. 

viii.  Justification  of  Removing  Plaintiff  from  Railroad  Car  for  Non-Pay- 
ment of  Fare. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  defendant  was,  before  and  at  the  time 
when  the  said  grievances  were  committed,  the  con- 
ductor, and  had  charge  of  a  passenger  train  on  the 

railroad  of  the   Railroad  Company,  running 

from to 

II.  That  one  of  the  regulations   of  said   

Railroad  Company  was,  that  no  person  should  be  per- 
mitted to  be  and  remain  on  such  train  without  having 
a   ticket   therefor,  duly   obtained   of  their   authorized 
agents. 

III.  That  at  the  time  mentioned  in  the  complaint,  the 
plaintiff  was  on  the  said  train,  without  having  a  ticket 
therefor  as  aforesaid,  and  then  and  there  refused  to  pur- 
chase a  ticket  or  to  pay  his  fare. 

IV.  That  the  defendant  then  and  there  requested  the 
said  plaintiff  to  leave  the  said  train,  which  the  plaintiff 


858  FORMS    OF    ANSWERS. 

refused  to  do;  whereupon  the  defendant  then  and  there 
gently  laid  his  hands  upon  the  said  plaintiff,  and 
removed  him  from  the  train,  doing  no  unnecessary  vio- 
lence, as  he  lawfully  might  do;  which  is  the  act  com- 
plained of  by  the  plaintiff.  » 


10.  Justification  of  Conductor. — A  conductor  of  a  train  is 
protected  in  putting  out  of  the  cars  a  passenger  who  has  refused  to  pay 
his  fare.     (People  v.  Jillson,  3  Park.  Cr.  234.)     They  are  limited  to 
the  use  of  just  so  much  force  as  may  effect  that  object,  and  no  more; 
(Hibbard  v.  New  York  and  E.  R.R.  Co.,  15  N.Y.  455;)  and  must  be 
consistent  with  the  safety  of  passenger's  life.     Sanford  v.  Eighth  Av. 
R.R.  Co.,  23  N.Y.  343. 

11.  Form. — The  above  form  is  taken  from  Nash's  Ohio  PI.  and 
Pr.,  No.  323. 

12.  General  Denial. — Where  a  conductor  upon  a  railroad  is  sued 
for  a  battery  in  forcibly  ejecting  a  passenger,  under  general  denial  he 
cannot  prove  the  existence  of  rules  of  the  company,  that  they  were 
reasonable,  and  that  his  acts  were  done  in  conformity  with  such  rules. 
Pier  v.  Finch,  29  Barb.  170. 


CHAPTER  II. 

FALSE    IMPRISONMENT 

No.  712. 

i.    Denial  of  Arrest. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  defendant  did  not  cause  said  order  of  arrest 
[or  warrant]  to  be  issued. 


FOR    FALSE    IMPRISONMENT.  859 

1.  General  Denial. — In  an  action  for  malicious  arrest,  a  general 
denial  puts  in  issue  the  want  of  probable  cause.  (Droux  v.  Domec, 
1 8  Cal.  83;  Rost  v.  Harris,  12  Abb.  Pr.  446;  Radde  v.  Ruckgaber,  3 
Duer,  685;  Simpson  v.  McArthur,  16  Abb.  Pr.  302.)  The  denial 
must  be  positive.  A  denial  on  information  and  belief  will  not  be  allowed. 
Lawrence  i).  Derby,  15  Abb.  Pr.  346. 


No.  713. 

ii.    Denial  of  Want  of  Probable  Cause. 


The  defendant  answers  to  the  complaint: 

That  the  defendant  did  not,  falsely  or  maliciously,  or 
without  probable  or  reasonable  cause,  cause  the  plaintiff 
to  be  arrested;  nor  did  he  cause  plaintiff  to  be  arrested 
at  all. 


2.  How  Pleaded. — In   an   answer  in  an  action  for  malicious 
prosecution,  it  is  superfluous  to  set  forth  facts  showing  probable  cause. 
(Radde  v.  Ruckgaber,  3  Duer,  684.)     And  if  the  allegation  of  want  of 
probable  cause  be  denied,  it  is  redundant  to  allege  probable  cause  as  a 
separate  defense.     Rost  v.  Harris,  12  Abb.  Pr.  416. 

3.  Justification  under  Legal  Process. — Where,  in  an  action 
for  false  imprisonment,  the  defendant,  by  special  plea,  set  up  legal  pro- 
cess in  justification  of  the  imprisonment  charged,  and  then  averred  that 
he  did  not  arrest  the  plaintiff,  but  that  the  latter  voluntarily  gave  bail: 
Held,  that  the  plea  was  bad  for  duplicity.     (Stanton  v.  Seymore,  5  Mc- 
Lean, 267.)     Simply  pleading  a  justification,  without  denying  the  want 
of  probable  cause,  admits  the  latter.     (Morris  v.  Carson,  7  Cow.  281.) 
In  an  action  for  false  imprisonment,  unless  the  defendant  is  an  officer, 
the  answer  should  state  the  circumstances,  from  which  the  Court  may 
judge  whether  the  suspicion  was  reasonable.     (Mure  v.  Kaye,  4  Taunt. 
34.)     What  constitutes  sufficient  probable  cause  to  justify  a  prosecution 
for  larceny,  (Haupt  v.  Pohlmann,  16  Abb.  Pr.  301.)     A  justice,  justi- 
fying his  imprisonment  of  another,  must  show  that  he  fills  the  office, 
not  merely  de  facto,  but  de  jure.     (Newman  v.  Tiernan,  37  Barb.  159.) 


86O  FORMS    OF    ANSWERS. 

See,  as  to  necessity  of  a  full  and  special  plea  of  justification,  when  inter- 
posable,  (Brown  v.  Chadsey,  39  Barb.  253.)  As  to  the  sufficiency  of 
this  defense,  see  Holley  v.  Mix,  3  Wend.  350. 


No. 

iii.   Justification  of  Arrest  upon  Suspicion  of  a  Felony. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  immediately  before  the  time  mentioned  in  the 
complaint  a  felony  was   committed   \briefly  state  the 

felony  and  causes  of  sitspicion  against  the  plaintiff~\. 

II.  That  thereupon  the  defendant,  having  reason- 
able cause  to  suspect  the  plaintiff  of  having  committed 
such  felony,  arrested  him  and  brought  him  before  J.P., 

a  justice  of  the  peace,  of ,  [or  other  magistrate^ 

to  be  dealt  with  according  to  law. 

III.  That   the  above  acts  are  the  same  of  which 
plaintiff  complains. 


4.  Defense. — It  is  a  good  defense  for  assault  and  battery,  that  the 
complainant  had  committed  petit  larceny,  and  that  the  alleged  assault 
consisted  in  arresting  him  therefor.     (People  v.  Adler,  3  Park.  Ct.  249.) 
So,  private  persons  may  be  justified  for  an  assault  in  arresting  persons 
in  the  act  of  committing  a  felony.     People  v.  Wolven,  7  N.Y.  Leg.Obs. 
89;  People  v.  McArdle,  i  Wheel.  Cr.  101. 

5.  Form. — The  above  form  is  from  Abbotts'  Forms,  No.  1,016. 


FOR    FALSE    IMPRISONMENT.  86 1 

No.  715. 

iv.    The  Same — Of  Arrest  under  Criminal  Process. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  before  and  at  the  time  of  the  committing  of 
the  alleged  trespasses,  he,  the  said  defendant,  was  a  con- 
stable [or  sheriff]  within  and  for  the  Town  or  County 
of  ! 

II.  That  a  warrant  duly  issued  by  one  A.B.,  under 
his  hand  and  seal,  and  directed  to  any  constable  [or 

sheriff]  of  said ,  which  then  was  delivered  to 

this   defendant  as  such   constable   [or  sheriff],  to   be 
executed;    whereby  he  was  commanded  to  arrest  the 
said  plaintiff,  and  bring  him  forthwith  before  said  Jus- 
tice   [or  state    before  whoni\,  there  to  answer  to  the 
charge  of  having  feloniously  stolen  and  carried  away  the 
goods  and  chattels  of  one ,  to  the  value  of 

dollars   [setting  forth  the  tenor  of  the  writ 

or  warrant  according  to  its  effect\. 

III.  That  the  said  A.  B.  then  was  a  justice  of  the 

peace,  within  and  for  the  Town  of ,  duly  elected 

and  qualified,  and  acting  as  such. 

IV.  That  by  virtue  of  the  said  warrant  so  issued,  he, 
the  said  defendant,  did  arrest  the  said  plaintiff,  and  had 
him  in  his  custody  until  he  was  discharged   [or  state 

facts]. 


6.    Trespass. — In  trespass  to  persons,  a  justification  under  civil 
process,  mesne  or  final,  must  be  pleaded  specially  by  the  party  in  whose 


862  FORMS    OF    ANSWERS. 

favor  it  is  issued.  Such  a  justification  does  not  sustain  the  plea  of  not 
guilty.  And  the  rule  is  the  same  whether  the  defendant  made  the 
arrest  or  only  directed  it  to  be  made.  Coats  v.  Darby,  2  N.Y.  517. 


No.  716. 

v.    Justification  by  Officer,  of  the  Same. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  at  and  immediately  before  the  time  men- 
tioned in  the  complaint,  the  defendant  was  a  constable 

of  the  Town  of [or  designate  other  official 

character]^. 

II.  That  he  was  then  informed  by  \Jiere  state  sources 
of  information^ ,  that  a  felony  had  been  committed,  in 
the  robbery  of  [state  felony,  and  the  grounds  for  sus- 
picion of  the  plaintiff^ . 

III.  That  thereupon,  believing  such  information  to  be 
true,   and  acting  thereon,    as   was    his     duty    to    do, 
he  arrested  him,  and  brought  him  before  J.P.,  a  justice  of 

the  peace,  of ,  [or  other  magistrate^  to  be  dealt 

with  according  to  law. 

IV.  That  the  above  acts  are  the  same  of  which 
plaintiff  complains. 


7.     Form. — As  to  the  sufficiency  of  this  defense,  see   Holly  v. 
Mix,  3  Wend.  350. 


CHAPTER  III. 

LIBEL    AND    SLANDER. 

JVo.  717. 

i.    Denial  of  Inducement. 

[TlTLE.J 

The    defendant    answers    to    the    complaint,    and 
denies: 

That  the  plaintiff  was  or  is  a  [physician],  either  as 

alleged  or  otherwise. 

• 

1.  Denial  and  Justification. — The  defendant  may  in  one 
answer  set  up  a  general  denial  or  not  guilty,  and  a  justification  on  the 
ground  of  truth.  (5  Duer,  665;  3  All.  69;  i  Brevard,  283;  39  Penn. 
441;  9  Humph.  215.)  As  to  whether  justification  and  denial  are  to  be 
considered  as  inconsistent  defenses,  the  authorities  are  conflicting. 
The  following  cases  treated  them  as  inconsistent:  (Attebury  v.  Powell, 
29  Miss.  429;  Ormsby  v.  Douglass,  2  Abb.  Pr.  407;  Buddington  v. 
Davis,  6  How.  Pr.  401;  Anibal  v.  Hunter,  Id.  255;  and  see  Lewis  v. 
Kendall,  Id.  59;  Sayles  v.  Wooden,  i  Code  R.  (N.S.)  410;  S.C.,  6 
How.  Pr.  84.)  They  have  been  held  to  be  not  inconsistent  in  the  fol- 
lowing cases:  (Stiles  v.  Comstock,  9  'Id.<^;  Buhler  v.  Wentworth,  17 
Barb.  649;  Hollenbeck  v.  Clow,  Id.  289;  and  see  Lansing  v.  Parker, 
Id.  288;  Vaughn  v.  Havens,  8  Johns.  109.)  But  he  cannot,  with  not 
guilty  as  to  the  whole  complaint,  plead  a  special  plea  of  apology  and 
payment  into  Court.  (6  and  7  Viet.  Ch.  96.)  As  to  part  of  the  com- 
plaint, (O'Brien  v.  Clement,  15  M.  &  W.  435;  3  D'.&  L.  676;  15 
Law  Jour.  285.)  In  an  action  for  libel,  where  the  answer  contained: 
First,  A  denial  of  the  publication;  Second,  a  justification;  it  was  held, 
on  demurrer  to  the  justification,  that  the  denial  remained  on  the  record, 


864  FORMS    OF    ANSWERS. 

\ 

and  raised  an  issue  of  fact;  but  see  Parrett  Nav.  Co.  v.  Slower,  8  Dowl. 
Pr.  Cas.  405. 

2.  General    Denial. — Evidence  of  the  bad  character  of   the 
plaintiff,  in  an  action  of  slander,  is  not  admissible  under  the  general 
denial.     (Anonymous,  6  How.  Pr.  160.)     Or  in  breach  of  promise. 
(Button  v.  McCauly,  38  Barb.  413.)     In  actions  for  slander  under  the 
general  denial,  defendant  may  give  in  evidence  the  general  bad  char- 
acter of  the  plaintiff.     (Anonymous,  8  How.  Pr.  434;  contra,  Anony- 
mous, 6  Id.  1 60.)     Where  a  general  denial  is  filed  to  a  paragraph  of  a 
complaint  for  slander  and  malicious  prosecution,  and  afterwards  with- 
drawn, the  facts  alleged  in  such  Complaint  are  to  be  taken  as  true. 
(George  v.  Nelson,  23  Ind.  392.)     An  answer  which  merely  states  that 
the  defendant  did  not  utter  the  words  alleged,  at  the  place  and  time 
alleged,  may  be  good  as  a  general  denial.     Salenger  v.  Lusk,  7  How. 
Pr.  430. 

3.  Insufficient  Plea. — That   the  letter  containing  the  defama- 
tory language  was  intended  for  the  plaintiff  himself,  was  held  bad. 
Fox  v.  Broderick,  14  Irish  Law  Rep.  453. 

• 

4.  Intent  and  Motive. — Allegations  in  a  complaint,  relative  to 

the  intent  and  motives  of  a  libelous  publication,  are  not  to  be  deemed 
material,  so  as  render  it  necessary  for  the  defendant  to  admit  or  contro- 
vert them  in  his  answer.  Fry  v.  Bennett,  5  Sandf.  54. 

5.  Justification. — An  answer  of  justification  must  give  color  to 
the  extent  of  admitting  for  the  purposes  of  the  answer  only,  the  publi- 
cation complained  of.     (Fidler  v.  Delavan,  20    Wend.  57;  Wilson  v. 
Beighler,  4  Iowa,  427;  Vanderveer  v.  Sutphin,  5  Ohio,  293;  Edsall  v. 
Russell,  2  Dowl.  (N.S.)  641;  5  Sc.  (N.S.)  801;  Davis  v.  Matthews,  2 
Ham.  257;  Folsom  v.  Brown,  5  N.H.  114;  Samuel  v.  Bond,  Litt.  Sel. 
Cas.  158;  Buddington  v.  Davis,  6  How.  Pr.  402;  Porter  v.  McCreedy, 
i  Code  R.  (N.S.}  88.)    The  justification  must  always  be  as  broad  as  the 
charge.     (2  B.  &.  C.  678;  4  D.  &  R.   230;  Stillwell  v.  Barter,  19 
Wend.  478;  Fidler  v.  Delavan,  20  Id.  57;  Cooper  v.  Barber,  24  Id. 
105;  Bissell  v.  Cornell;    24  Id.  354;   Torrey  v.  Field,  10   Vt.  353; 
Crump  v.  Adney,  i  Cr.  &  M.  362;  Burford  v.  Wible,  32  Penn.  95; 
Wilson  v.  Beighler,  4  Iowa,  427;  Van  Derveer  v.  Sutphin.  5  Ohio,  293; 
McKinly  v.  Rob,  20  John.  354;  Herr  v.  Bambery,  10  How.  Pr.  130; 
Loveland  v.  Hosmer,  8  Id.  215.)     And  must  justify  the  same  words 


FOR    LIBEL   AND    SLANDER.  865 

used   in  the  complaint.     Skinner   v.  Grant,   12    Vt.  456;  Ormsby  v. 
Douglas,  2  Abb.  Pr.  407. 

6.  Justification,  how  Pleaded. — To  constitute  a  justification 
in  an  action  for  libel,  the  answer  must  aver  the  truth  of  the  defamatory 
matter  charged.     It  is  not  sufficient  to  set  up  facts  which  only  tend  to 
establish  the  truth  of  such  matter.     Without  an  averment  of  its  truth, 
the  fact  detailed  can  only  avail  in  mitigation  of  damages.     (Thrall  v. 
Smiley,  9  Cal.  529.)     See,  as  to  the  necessity  of  averment  of  special  cir- 
cumstances, in  interposing  plea  of  justification,  and  that  general  allegation 
of  truth  of  charge  will  not  avail,  (Wachter  v.  Quenzer,  29  N.Y.  547.) 
And  such  plea  must  be  certain,  specific  and  particular,  as  the  Code  has  not 
changed  the  former  rules  on  the  subject.     (Billings  v.  Waller,  28  How . 
Pr.  97;  Tilson  v.  Clark,  45  Barb.  178.)     Held,  that  pleas  of  the  above 
nature  are  rather  in  the  nature  of  a  notice  than  of  an  allegation  of  new 
matter.     (Maretzek  v.  Cauldwell,  19  Abb.  Pr.  35.)     Although  the  facts 
set  forth  in  a  special  plea  do  not  amount  in  law  to  a  justification,  yet,  if 
issue  be  joined  thereon,  and  the  facts  are  found  as  pleaded,  it  is  error  in 
the  judge  to  instruct  the  jury  that  the  facts  as  proved  do  not  in  law  main- 
tain the  issue  on  the  part  of  the  defendant.     See  Otis  v.  Watkins,  9 
Crunch,  339. 

7.  Justification  and  Mitigation. — Matter  in  mitigation  may 
be  pleaded  either  with  or  without  a  plea  of  justification.     And  a  plea 
of  justification  does  not  conclude  the  defendant  from  the  benefit  of  evi- 
dence tending  to  disprove  malice.     (N.Y.  Code,  §  165;  Bush  v.  Pros- 
ser,  ii  N.Y.  347;  Van  Benschoten  v.  Yaple,  13  How.  Pr.  97;  Hea- 
ton  v.  Wright,  10  Id.  79;  see  Kneedler  v.  Sternbergh,  Id.  67;  Russ 
v.  Brooks,  4  E.  D.  Smith,  644.)     It  seems  that,  in  an  answer  in  an 
action  of  libel  and  slander,  it  is  not  competent  to  plead  both  a  justifi- 
cation and  matter  in  mitigation;  for  the  one  insists  upon  the  truth  of 
the  charge,  the  other  admits  that  it  was  unfounded.     Gorton  v.  Keeler, 
51  Barb.  475. 

8.  Mitigation,  how  Pleaded. — Matter  in  mitigation  must  be 
separately  stated  from  matter  in  justification.     (Follet  v.  Jewett,  1 1  N.Y. 
Leg.   Obs.  193;  S.C.,  2  Liv.  Law  Mag.  189.)     But  matter  which   is 
alleged  in  justification  may  also  properly  be  alleged  in  mitigation  of 
damages.     Howard  v.  Raymond,  n  Abb.  Pr.  155. 

9.  Mitigation — Requisites  of  Defenses. — When   facts  and 
circumstances  are  pleaded  in  mitigation  of  damages,  it  is  requisite  that: 

55 


866  FORMS    OF    ANSWERS. 

First,  The  facts  and  circumstances  must  be  such 'as  would  reasonably 
induce,  in  the  mind  of  a  person  possessed  of  ordinary  intelligence  and 
knowledge,  a  belief  in  the  truth  of  such  charge;  Second,  It  must  also 
appear  that  the  defendant,  before  and  at  the  time  of  making  the  charge, 
knew  such  facts  and  circumstances;  and,  Third,  That  he  was,  by  reason 
of  the  facts  and  circumstances  so  set  forth,  induced  to  believe  in  the 
truth  of  the  charge.  ( Townshend  on  S land,  and  Lib.  445.)  Mitigating 
circumstances  set  up  in  an  answer  in  an  action  for  libel,  are  not  a  de- 
fense within  the  meaning  of  the  Code,  which  requires  a  pleading  to  be 
made  definite  and  certain.  4  Sandf.  669;  6  How.  Pr.  19,  376;  Maret- 
zek  v.  Cauldwell,  19  Abb.  Pr.  35. 

10.  Mitigation — Allegation  of  Republication  of  Matter 
as  News. — And  in  mitigation  of  damages  to  which  the  plaintiff  might 
othewise  appear  entitled  by  reason  of  the  publication  of  the  said  sup- 
posed libelous  article,  this  defendant  alleges  that  all  the  matters  and  things 

stated  under  the  [second]  defense  were,  on  the  ....  day  of , 

18. .,  at ,  currently  reported  and  believed  in,  and  were  pub- 
lished in  a  certain  newspaper,  called  the ,  published  in , 

and  were  so  communicated  to  this  defendant,  and  were  published  by  him 
as  matters  of  current  public  news,  the  defendant  verily  believing  the  same 
to  be  true.     Howard  v.  Raymond,  n  Abb.  Pr.  155. 

11.  Notice   of  Defense. — In  some  States,  by  statute,  a  notice  or 
specification  of  the  defense  is  substituted  for  a  plea  in  answer.     In  such 
case,  the  notice  must  contain  all  the  material  allegations  of  a  plea  or 
answer.     (Townshend  on  Sland.  and  Lib.  444;  see  5  Ohio  (N.S.)  293; 
21  Pick.  (Mass.)  404;   13  Johns.  475;  8    Wend.  570;  24    Wend.  354.) 
Before  the  Code  in  New  York,  it  was  held  that  matter  in  justification 
might  be  given  in  evidence  under  such  notice.     (Baker  v.  Wilkins,  3 
Barb.  220.)     It  seems  that  a  justification,  though  interposed  in  good 
faith,  renders  the  defendant  liable  for  actual  damages  occasioned  by  the 
restoration  of  the  defamatory  matter  in  his  answer,  if  not  sustained  by 
the  evidence.     Fulkerson  v.  George,  3  Abb.  Pr.  75. 

12.  Notice,  Form  of  in  Answer. — And  in  mitigation  of  any 
damages  to  which  the  plaintiff  might  otherwise  appear  entitled,  by 
reason  of  the  publication  of  said  supposed  libelous  article,  this  defend- 
ant repeats  and  renews,  all  and  singular,  the  matters  stated  under  the 
[second]  defense  herein;  and  will  give  in  evidence  thereof,  in  mitiga- 
tion of  damages,  as  well  as  in  justification.     Howard  v.  Raymond,  1 1 
Abb.  Pr.  155. 


FOR    LIBEL    AND    SLANDER.  867 

13.  Plea  in  Bar. — It  was  held  in  New  York  that  a  plea  in  bar 
must  answer  the  whole  count,  but  that  one  plea  might  state  several  de- 
fenses to  different  parts.     (Cooper  v.   Greeley,   i   Den.  365;  and  see 
Ames  v.  Hazard,  6  R.I.  335.)     And  that  a  plea  might  apply  to  part  of 
a  libel,  see  (Spencer  v.  Southwick,  n  Johns.  573.)     So,  if  the  matter  is 
divisible.     Edwards  v.  Bell,  i  Bing.  403;  Cooper  v.  Lawson,  i  Perr. 
&  D.  15;  O'Connell  v.  Mansfield,  9  Irish  Law  R.  179;  Torrey  v.  Fields, 
10  Vt.  353. 

14.  Proof  in  Mitigation. — As  to  what  facts  may  be  proven  in 
mitigation  of  damages,  in  an  action  for  libel,  see  (Stanley  v.  Webb,  21 
Barb.   148;  Heaton  v.  Wright,  10  How.  Pr.  79;  Brown  v.  Orvis,  6  Id. 
376;  Hamer  v.  McFarlin,  4  Den.  509;  Graham  v.  Stone,  6  How.  Pr. 
15;  Snyder  v.  Andrews,  6  Barb.  43.)     The  reply  by  plaintiff,  immedi- 
ately after  defendant  uttered  the  slanderous  words,  may  be  proved  by 
defendant.     Bradley  v.  Gardner,  10  Cal.  371. 

15.  Specific  Denial. — The  answer  in  an  action,  before  the  amend- 
ment of  the  Code  dispensing  with  a  reply  except  in  certain  cases, 
averred  the  truth  of  the  libel  sued  on;  and  the  reply  controverted  spe- 
cific allegations  in  the  answer,  and  then  concluded  with  a  general  de- 
nial of  all  matters  in  the  answer  not  particularly  referred  to.     Held,  that 
the  denial  was  sufficiently  specific,  and  that  the  issue  was  the  truth  of 
the  publication,  and  the  burden  was  on  the  defendant.      Hunt  v.  Ben- 
nett, 4  E.  D.  Smith's  C.  P.  R.  647. 


JVo.  718. 

ii.    Justification — Truth  of  Publication,  when  the  Charge  is  Specific. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

That  the  charge,  and    supposed  defamatory    words 
in  the  complaint  set  forth,  are  each  and  all  of  them  true. 


868  FORMS    OF    ANSWERS. 

No.  719. 

iii.    The  Same —  When  the  Charge  is  General. 
[TITLE.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

That  on  the  ....  day  of ,  1 8 .  . ,  at 

the  plaintiff  stole  from  [the  defendant  one  bale  of  hay], 
to  which  the  defendant  referred  when  speaking  [or 
printing,  or  writing]  the  words  stated  in  the  complaint. 

16.  Form. — The  above  form  is  from  the  report  of  the  Code  Com- 
missioners of  New  York,  p.  147.     In  a  defense  pleaded  in  an  action 
for  libel,  that  the  charges  contained  in  the  alleged  libelous  publication 
were  true,  such  matter  is  not  new  matter,  within  the  meaning  of  the 
Code.     Maretzek  v.  Cauldwell,  19  Abb.  Pr.  35. 

17.  Truth  of  Publication. — Truth,  as  a  defense,  must  be  set 
up  by  plea  or  answer.     (Manning  v.  Clement,  7  Bing.  367;  2  Greenl. 
Ev.  424;  Hagan  v.  Handy,  6  R.I.  335;  Frederitze  v.  Odenwalder,  2 
Yeates,  243.)     It  is  an  issuable  plea.     (Woodward  v.  Andrews,  i  Brev. 
310.)     And  may  be  set  up,  although  the  power  to  punish  him  may  be 
barred  by  limitation.    (Ankin  v.  Westfall,  14  Johns.  234.)    Or,  although 
the  plaintiff  has  been  tried  upon  the  charge  and  acquitted;  (Cooke  v. 
Field,  3  Exp.  133;)  or  pardoned.    Baume  v.  Clause,  5  Hill.  196. 

18.  Truth,  how  Pleaded. — Where  the  defamatory  charge  is  in 
general  terms,  it  is  not  sufficient  to  set  upon  the  answer  merely  that  such 
Charge  is  true.     (Van  Wyck  v.  Guthrie,  4  Duer,  268;  Weaver  v.  Lloyd, 
2  B.  &  C.  678;  Anon.,  3  How.  Pr.  406;  Holmes  v.  Catesby,  i  Taunt, 
543.)     But  facts  must  be  stated  showing  that  it  is  true.     (Annibal  v. 
Hunter,  6  How.  Pr.  255;  Sayles  v.  Worden,  Id.  84;  Lewis  v.  Kendall, 
Id.  59;    Buddington  v.  Davis,  Id.  401;    Porter  v.    McCreedy,  i   Code 
Rep.  (N.S.)  88;  Ormsby  v.  Douglass,  5  Duer,  665;  Steinman  v.  Clark, 
2  Abb.  Pr.  407;   10  Abb.  Pr.  132;  Fry  v.  Bennett,  5  Sandf.  69;  Law- 
ton  v.  Hunt,  4  Rich.  458;  Atteberry  v.  Powell,  29  Miss.  429;  Billings 
v.  Waller,  28  How.  Pr.  97.)     Where  the  charge  is  specific,  it  is  suffi- 
cient to  allege  that  the  charge  is  true.     (Van  Wyck  v.  Guthrie,  4  Duer, 


FOR    LIBEL    AND    SLANDER.  869 

268;  see,  also,  i  Rolle.  Abr.  87;  i  Stark,  on  Sland.  478;  Tow nshend  on 
Stand,  and  Lib.  438.)  Where  the  facts  are  required  to  be  alleged,  they 
must  be  stated  with  certainty.  (Id.;  Van  Ness  v.  Hamilton,  19  Johns. 
349;  Riggs  v.  Denniston,  3  Johns.  Cas.  198.)  So,  to  justify  a  charge 
of  crime,  the  plea  or  answer  must  specify  the  crime  with  certainty.  Nail 
».  Hill,  Peck.  325. 

19.  Truth — Insufficient  Defense. — An  averment  that  it  was 
generally  reported  that  plaintiff  had  been  guilty  of  the  crime  charged 
upon  him  by  the  words  complained  of,  is  irrelevant  as  a  defense,  and 
will  be  stricken  out  on  motion.     (Van  Benschoten  v.  Yaple,  1 3  How. 
Pr.  97;  see,  also,  Graham  v.  Stone,  6  Id.  15.)     As  to  what  matters  may 
be  given  in  evidence  in  mitigation,  without  being  pleaded,  see  Harter 
v.  Grill,  33  Barb.  283. 

20.  Truth    and   Mitigating  Circumstances. — The  defend- 
ant may,  in  his  answer,  allege  both  the  truth  of  the  matter  charged  as 
defamatory,  and  any  mitigating  circumstances  to  reduce  the  amount  of 
damages;  and  whether  he  prove  the  justification  or  not,  he  may  give  in 
evidence  the  mitigating  circumstances.     See  Cal.  Pr.  Act,  §  63 ;  Laws 
of  Oregon,  §  89;  Code  of  New  York,  §§  149,  165. 


No.  720. 

iv.   Justification  and  Denial  of  Malice,  in  Charge  of  Larceny. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  each  and  every  article  in  the  complaint  men- 
tioned as  having  been  charged  by  defendant  to  have 
been  stolen  by  the  plaintiff,  had,  at  the  time  mentioned 
in   the    complaint,  been    taken  and   stolen    from  the 
defendant. 

II.  That  the    defendant  is    informed  and  believes 
that  the  plaintiff  has  been,  and  is,  guilty  of  each  and 
every  charge  in  said  complaint  alleged  to  have  been 
made  against  her  by  the  defendant;  and  that,  whatever 


870  FORMS    OF    ANSWERS. 

the  defendant  has  said  of  or  concerning  the  plaintiff, 
she  has  said  in  the  full  belief  of  its  truth  and  verity,  and 
in  self-vindication  and  warning  to  others,  and  not  from 
any  motives  of  malice  towards  the  plaintiff. 


21.  Rights  of  Parties. — No  man  is  at  liberty  to  traffic  with  the 
character  of  another,  by  publishing  charges  against  him  calculated  to 
bring  him  into  general  contempt,  and  then  to  justify  himself  by  stating 
his  authority,  and  proving  the  statement.  (Romayne  v.  Duane,  3  Wash. 
C.  Ct.  246.)  For  what  is  a  justification,  and  how  it  should  be  pleaded, 
see  (Kern  v.  Force,  3  Cranch  C.  Ct.  8.)  The  above  form  is  sustained  by 
Sherman  v.  Clarke,  10  Abb.  Pr.  132. 


No.  721. 

v.    Answer — Setting  up  a  Defense  and  Mitigating  Circumstances. 

[Tm,E.] 

The  defendant  answers  to  the  complaint: 

First — For  a  defense: 

That  the  publication  complained  of  was  true.  [If  the 
alleged  libel  was  not  specific  in  its  charges,  state  the 
facts  ^tpon  which  it  was  founded."] 

Second — As  mitigating  circumstances: 

I.  That  on  the    ....    day  of   ,   1 8 .  . ,  the 

plaintiff  accused  one  B.  C.  of  burglary,  at 

II.  That  thereupon  an  officer  of  the  police  of 

took  the  said  B.  C.  into  custody,  and  conducted  him  to 
a  station-house. 

III.  That  while  at  the  station-house,  the  said  B.  C. 
made  tojthe  captain  of  police  there  in  command  a  state- 
ment, which  is  fairly  and  truly  reported  in  the  publica- 


FOR    LIBEL   AND    SLANDER.  8/1 

tion  complained  of  [or  made  a  statement  to  the  effect 
that  the  robbery  with  which  he  was  charged  was 
planned  by  the  plaintiff,  and  wag  effected  by  him  and 
the  plaintiff  in  concert,  that  they  quarrelled  over  the 
division  of  the  plunder,  and  that  thereupon  the  plaintiff 
charged  him  with  the  felony]. 

IV.  That  afterwards  the  plaintiff  was  arrested  by  a 
police  officer,  and  conveyed  before  J.  P.,  a  police  justice 

of  the  City  of ,  and  held  to  bail  by  the  said 

Justice,  to  answer  the  charges  of  the  said  B.  C. 

V.  That  the  publication  complained  of  contained  a 
fair  and  true  statement  of  the  preceding  circumstances. 

VI.  That  it  was  published  in  a  newspaper  belonging 
to  the  defendant,  by  his  employees,  without  his  knowl- 
edge or  consent. 

VII.  That  the  persons  publishing  it  inserted  it  as  an 
item  of  public  news,  without  malice,  believing  the  same 
to  be  true. 


22.     Note. — This  form  and  the  three  following  are  from  the  Form 
Book  of  the  Code  Commissioners  of  New  York. 


No. 

vi.    Privileged  Publication. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.   That    on     the  ....  day    of ,  1 8 .  . ,    at 

,  an  action  was  tried  in  the Court  of 

,  in    which was    plaintiff,   and    the 

plaintiff  herein  was  defendant  \pr  an  indictment  having 


8/2  FORMS    OF     ANSWERS. 

been  found  against  the  plaintiff  for ,  he  was 

tried  therefor  in  the Court;  or  otherwise,  as  the 

case  may  be~\. 

II.  That  the  article  published  in  the  defendant's 
newspaper,  established  in  the  complaint,  was  a  fair  and 
true  report  of  the  [testimony  of  one  of  the  witnesses, 
named ,  made  in  the  course  of  the  said  trial. 

23.  Legal  Proceedings. — Words  spoken  or  written  in  a  legal 
proceeding,  and  material  to  the  controversy,  are  privileged.  No  action 
will  lie  upon  them,  and  it  is  not  necessary  for  the  defendant  to  deny  the 
allegation  of  malice.  (Garr  v.  Selden,  N.Y.  91;  and  see  Suydam  v, 
Moffat,  i  Sandf.  459;  Buddington  v.  Davis,  6  How.  Pr.  401.)  For 
other  cases  of  privileged  communication,  see  Ante,  p.  19. 

No.  723. 

vii.    Privileged  Communication — Another  Form. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That    at    the     time    of   publishing    the     words 
mentioned  in  the  complaint,  an  action  was  pending  in 
the Court,  between  [the  parties  to  this  action]. 

II.  That  at  that  time  this  defendant  applied  to  B.  C., 

the  Judge  of  the  said  Court,  for  an  order  of , 

and  upon  his  application  presented  to  the  said  Judge  an 
affidavit  containing  the  words  complained  of,  which  said 
affidavit  was  pertinent  to  the  said  application. 

III.  That  the  defendant  did  not  in  any  other  way 
publish  the  said  words. 


FOR    LIBEL   AND    SLANDER.  873 

No.  724. 

viii.    The  Same — Another  Form. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  he  was,  at  the  time  of  uttering  the  words 
mentioned  in  the    complaint,   the  [confidential  clerk] 
of 

II.  That  the  said inquired  of  the  defend- 
ant the  character  of  the  plaintiff,  with  a  view  of  employ- 
ing him  as  a  clerk  [or  as  the  case  may  be~\,  and  the  de- 
fendant then  stated  to  him  the  matter  referred  to  in  the 
complaint. 

III.  That  the   defendant    had    probable   cause    for 
believing,  and  did  believe,  the  same  to  be  true. 


24.  Privileged  Communications. — A  report  of  the  directors 
of  a  company  contained  the  following  statement:  "The  shareholders 
will  observe  that  there  is  a  charge  of  £1,306  for  deficiency  of  stock, 
which  the  manager  is  responsible  for.  His  accounts  have  been  badly 
kept,  and  have  been  rendered  to  us  very  irregularly."  This  report  was 
printed  and  sent  to  the  shareholders,  according  to  the  usual  practice,  by 
order  of  a  general  meeting:  Held,  that  in  the  absence  of  evidence  of 
express  malice,  the  printing  and  publication  of  the  report  was  privileged. 
Lawless  v.  Anglo-Egyptian  Cott.  Co.,  L.  R.  4  Q.  B.  262. 


CHAPTER  IV. 

INJURIES    CAUSED   BY   NEGLIGENCE. 

No.  725. 

i.     Denial  of  Ownership  and  Possession. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 
That  at  the  time  of  the  grievance  alleged  the  defendant 
was  not  the  owner,  and  had  not  the  possession  or  con- 
trol of  the  premises  in  which  said  hole  or  hatchway  was. 
[Or,  that  the  said  horse  and  carriage  alleged  to  have 
been  injured  were  not  the  property  of  the  plaintiff.] 

No.  726. 

ii.     Plaintiff's    Own  Negligence. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  defendant  and  his  servants  used  due  care 
and  diligence  ,about  the  construction  of  the  said  building 
[or  in  repairing  said  street,  and  replacing  the  pavement 
thereof;  or  in  guarding  the  said  excavation  with  proper 
bulwarks,  and  in  putting  up  lights  during  the  night-time; 
or  otherwise,  according  to  the  allegations  in  the  com- 
plaint^, and  that  said  injury  was  not  caused  by  any  neg- 
ligence on  the  part  of  the  defendant  or  his  servants,  but 
was  owing  to  the  negligence  and  fault  of  the  plaintiff 
himself. 


FOR    INJURIES    CAUSED    BY    NEGLIGENCE.  875 

1.  General  Denial. — In  an  action  for  damages  for  negligence,  it 
is  not  neccessary  that  the  answer  should  aver  that  the  plaintiff's  negli- 
gence contributed  to  the  injury,  in  order  to  enable  defendant  to  offer 
evidence  of  that  fact.     It  may  be  shown,  under  a  general  denial  of  the 
plaintiff's  charge,  that  the  injury  was  caused  by  the  defendant's  negli- 
gence.    (MacDonnell  v.  Buffum,  31  How.  Pr.  154. 

2.  Concurrent  Negligence. — If,  in  an   action  brought    by  a 
laborer  against  his  employer,  to  recover  damages  for  an  injury  sus- 
tained by  the  employer's  carelessness,  the  employer  relies  for  a  defense 
upon  the   fact  that  such  injuries  were  caused  by  the  negligence  or 
improper  conduct  of  a  fellow-servant,  an  averment  to  that  effect  should 
be  made  in  the  answer.     An  averment  that  the  plaintiff's  injury  was 
caused  by  his  own  negligence,  does  not  raise  the  issue.     (Conlin  v . 
S.F.  and  S.J.  R.R.  Co.,  36  Cal.  404.)     Query,  whether  in  action  against 
a  carrier,  for  injuries  resulting  in  the  death  of  a  passenger,  owing  to 
the  concurrent  negligence  of  the  carrier  and  a  third  party,  the  defense 
of  concurrent  negligence  in  the  agencies  producing  death,  if  a  defense 
at  all,  can  be  heard  without  being  specially  pleaded.     Lockhart  v. 
Lichtenthaler,  46  Penn.  Stat.  151;  consult  Ante,  p.  79,  Note  31;  p.  91, 
Note  61. 

No.  727. 

iii.    Denial  of  Possession  of  Vicious  Dog. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  does  not  own  the  said  dog,  and  never  did; 
and  that  he  was  not  the  possessor  of  the  said  dog  at 
the  time  of  the  grievances  alleged,  nor  at  any  other 
time,  before  or  since  said  alleged  grievances. 

3.  General  Denial. — In  an  action  for  keeping  a  ferocious  dog, 
which  bit  the  plaintiff,  defendant  may  on  general  denial  avail  him- 
self of  want  of  proof  that  the  dog  was  accustomed  to  bite.     Hogan  v . 
Sharpe,  6  Car.&P.  755. 


FORMS    OF    ANSWERS. 


No.  728. 

iv.    Denial  of  Scienter. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  at  the  time  of  the  grievances  alleged  the 
defendant  did  not  know,  and  had  no  reason  to 
believe,  that  said  dog  was  accustomed  to  bite  mankind, 
or  was  of  a  mischievous  nature  [or  otherwise,  according 
to  the  allegations  of  the  complainf\. 


ANSWERS — SUBDIVISION  FOURTH. 

Injuries  to  Property. 


CHAPTER   I. 

BAILEES. 

No.  729. 

Denial  of  Bailment. 
[TITLE.] 

The  defendants  answer  to  the  complaint: 

I.  That  said  goods  described  in  the  complaint  were 
not  the  property  of  the  plaintiff,  and  were  not  depos- 
ited with  the  defendant  by  him  or  his  agents. 

II.  That  the  same  was  the  property  of  one  A.  B.,  to 
whom  the  possession  of  them  belonged  when  this  action 
was  brought. 


NOTE. — See  (Beach  v.  Berdell,  2  Duer,  327),  where  this  defense  was 
sustained. 

1.  Estoppel. — A  bailee  or  agent  cannot  dispute  the  original  title 
of  the  bailor  or  principal  from  whom  he  has  received  property.     Vos- 
burgh  v.  Huntington,  15  Abb.  Pr.  254;  and  compare  Sund  v.  Seaman's 
Sav.  Bank,  37  Barb.  129. 

2.  Hire. — A  hirer  of  chattels,  in  the  absence  of  a  special  agreement, 
is  not  bound  to  make  good  their  loss  by  fire,  while  in  his  possession, 
without  his  fault.     Story  on  Bailm.  §  414;  Hyland  v.  Paul,  33  Barb.  241. 


878  FORMS    OF   ANSWERS. 

3.  Liability. — Although  bailees  without  reward  are  liable  only  for 
gross  negligence,  the  question  of  gross  negligence  depends  in  part 
upon  the  nature  of  the  thing  bailed.     (Tracy  v.  Wood,  3  Mass.  132.) 
The  test  is  to  consider  whether  they  have  omitted  that  care  which 
bailees   without   hire  or  mandataries   of    ordinary   prudence   usually 
take  of  property  of  the  nature  of  that  in  question.     (Id.}    "And  liability 
depends  upon  the  abuse  of  the  thing  hired,  or  such  negligence  in  its 
use  as  brings  responsibility  upon  the   hirer.     See  Jones  on  B.   120; 
Reeves  v.  The  "Constitution,"  Gilp.  579. 

4.  Several  Defenses. — So,  in  an  action  to  recover  securities 
pledged  with  defendants,  the  defendants,  in  their  answer,  may  deny 
knowledge,  etc.,  sufficient  to  form  a  belief  whether  the  securities  be- 
longed to  plaintiff;  and  also  aver  that  the  securities  were  delivered  to 
them  by  plaintiff  as  collateral  to  debts  yet  unpaid.     Townsend  v.  Platt, 
3  Abb.  Pr.  325. 

5.  Title  in  Third  Party. — To  the  general  rule  that  a  bailee 
will  not  be  allowed  to  set  up  title  in  a  third  party,  in  an  action  brought 
by  the  bailor,  there  is  an  exception  in  the  cases  where  the  bailor's  pos- 
session was  obtained  by  fraud.     Hayden  v.  Davis,  9  Cal.  573. 


CHAPTER  II. 

COMMON    CARRIERS. 

f 

No.  730. 

i.    Denial  of  Being  a  Common  Carrier. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  is  not  now,  and  was  not  at  the  time  mentioned 
in  the  complaint,  or  at  any  time,  a  common  carrier. 

1.    Note. — Forwarders  and  carriers  distinguished,  (Place  v.  Union 
Express  Co.,  2  Hilt.  19.)    Forwarders  remain  liable  as  carriers  so  long 


COMMON    CARRIERS.  879 

as  they  retain  the  custody  of  the  goods  as  such.  Goold  v.  Chapin,  20 
N.y.  259;  compare,  however,  Johnson  v.  N.Y.  Cen.  R.R.  Co.,  31 
Barb.  196:  see  Ante,  p.  144,  Note  7. 


No.  731. 

ii.    Denial  of  Employment. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  did  not  undertake  nor  agree  to  carry  the 

said  goods  to ,  nor  to  deliver  them  there  to 

,  and  that  said never  paid  him  any 

reward  for  such  service. 


2.  Negligence  and  Delay. — Boxes  of  poultry  packed  in  ice 
were  delivered  by  the  plaintiff  to  a  carrier  by  steamboat,  and  his  clerk 
signed  a  receipt  for  them,  stating  their  contents.  The  boat  was  de- 
layed by  fog,  no  attention  was  paid  to  the  poultry,  and  it  was  spoiled. 
Plaintiffs  had  long  sent  poultry  by  defendant's  boat,  who,  when  delayed 
had  often  forwarded  the  same  by  rail.  Held,  that  defendants  were 
liable.  Peck  v.  Weeks,  34  Conn.  145. 


JVo.  732. 

iii.  Denial  of  Receipt  of  Goods. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That   said    never   delivered   to   him   the 

said  goods  mentioned  in  said  complaint,  and  that  he 
never  received  the  same,  or  any  of  them. 


88O  FORMS    OF    ANSWERS. 

No.  738. 

iv.     Denial  of  Loss. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  denies,  on  his  information  and  belief,  that  said 

goods  were  lost  to  the  said ,  and  denies  that 

he  was  negligent  in  and  about  the  transporting,  storing 
or  unloading  of  the  same. 

No.  734. 

v.     That  the    Contract  was  Special. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  goods  mentioned  in  the  complaint  were  de- 
livered by  the  plaintiffs  to,  and  received* by,  the  defend- 
ants, upon  a  special  contract  between  them,  whereby  it 
was  provided  that  \state  terms  of  contracf\. 


3.  Effect  of  Special  Contract. — A  common  carrier  may,  by  spe- 
cial contract,  restrict  or  modify  his  common  law  liability  as  an  insurer  of 
goods  received  for  transportation.     (Merc.  Mut.  Ins.  Co.  v.  Calebs,  20 
N.K  173;  Meyer  v.  Harnden's  Exp.  Co.,  24  How.  Pr.  290.)     Or  the 
carrier  may  contract  that  he  shall  have  the  benefit  of  any  insurance 
effected  by  or  on  account  of  the  owner.     Merc.  Mut.  Ins.  Co.  v.  Calebs, 
20  N.Y.  173. 

4.  Express  Company. — A  receipt  given  by  an  express  com- 
pany, and  limiting  their  liability  at  the  time  of  the  delivery  of  them  for 
carriage,  is  not  a  defense  in  an  action  for  the  loss  of  such  goods,  unless 
knowledge  of  the  contents  of  the  receipt  is  brought   home   to   the 
plaintiff.     (Belger  v.  Dinsmore,  51  Barb.  69.)    The  Adams   Express 
Company  gave  receipts   for  goods,    "  value  under  fifty  dollars,  unless 
otherwise  herein  stated."     Held,  that  this  did  not  exempt  tHem  from 


COMMON    CARRIERS.  88 1 

liability  beyond  that  amount  for  goods  lost  by  their  want  of  ordinary 
care.  (Orndorff^.  Adams  Exp.  Co.,  3  Bush.  194.)  A  parcel  worth 
$675  was  lost  in  transportation  by  Adams  Express  Company.  Their 
agent  had  given  a  printed  receipt  containing  a  stipulation  that  in  no 
event  "  shall  the  holder  hereof  demand  beyond  the  sum  of  fifty  dol- 
lars, at  which  the  article  forwarded  is  hereby  valued,  unless  otherwise 
herein  expressed,  or  unless  specially  insured  "  by  the  company,  "  and 
so  specified  in  this  receipt."  The  value  of  the  parcel  was  not  made 
known  to  the  company,  and  it  was  not  specially  insured.  Held,  that 
the  company  was  not  liable  for  more  than  fifty  dollars,  with  interest. 
Brehme  v.  Adams  Exp.  Co.,  3  Bush.  194. 

5.  Peril  Excepted. — If  the  defense  is  the  operation  of  a  peril 
of  a  class  excepted,  the  answer  should  specify  what  the  particular  peril 
was,  so  that  the  plaintiff  may  meet  it.     Woodworth  v.  McBride,  3 
Wend.  227. 

6.  Plaintiff's    Knowledge. — Where  the  complaint  is  ex  con- 
tractu,  and  does  not  allege  prepayment,  an  allegation  that  the  plaintiff 
had  notice  of  the  condition  on  which  defendant  received  them,  and  de- 
livered them  with  knowledge  of  it.  is  enough.     Wyld  v.  Pickford,  8 
Mees.  <5f  W.  443. 

7.  Title  to  Goods. — The  master  of  a  vessel  is  entitled  to  prove 
that  the  goods  which  he  failed  to  deliver  at  a  certain  place,  according  to 
agreement,  belonged  to  a  third  pary,  who  had  forbidden  such  delivery, 
and  that  plaintiff  had  obtained  possession  of  such  goods   by  fraud. 
Hayden  v.  Davis,  9  Cal.  573. 


No.  735. 

Damage   by  Plaintiff's  Fault. 

[TrTLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  goods  mentioned  in  the  complaint  were 
a  dangerous  and  explosive  substance  known  as  nitro- 
glycerine, which  the  plaintiff  then  well  knew,  but  which 
the  defendant  did  not  know,  and  could  not  reasonably 
be  expected  to  know. 

56 


882  FORMS    OF    ANSWERS. 

II.  That  the  plaintiffs  did  not  inform  the  defendant 
of  the  destructive  nature  of  the  goods,  and  negligently 
delivered  the  same  to  the  defendant  in  bulk,  and  there- 
by induced   the  defendant   to   believe   that   the   same 
might  be  placed  in  with  other  goods,  casks  and  boxes 
without  danger  or  injury. 

III.  \_State  special  contract,  if  any,  which  was  thereby 
violated^. 


CHAPTER  III. 

BY  AGENTS,  EMPLOYEES  AND  OTHERS. 

No.  736. 

i.     Denial  of  Negligence  in  Sale. 
[TITLE.] 

•The  defendant  answers  to  the  complaint,  and  alleges: 

That  he  was  not  negligent  in  and  about  selling  said 
goods,  but  sold  the  same  with  due  diligence,  and  for 
as  large  a  price  as  he  could  obtain. 


1.  Factor. — A  factor  whose  discretion  in  making  sales  is  not 
limited  by  instructions,  is  not,  by  selling  forthwith,  made  liable  for  mis- 
feasance, where  it  appears  that  he  acted  in  consonance  with  the  gen- 
eral opinion  of  dealers  in  the  article  at  the  time.  Millbank  v.  Dennis- 
town,  10  Bosw.  382. 


BY    AGENTS,    ETC.  883 


• 


JVo.  737. 

ii.    Denial  of  Negligence  in  Giving  Credit. 

[TITLE.] 

• 

The  defendant  answers  to  the  complaint: 

That  he  sold  said  goods  to   one  A.B.,  who  was  a 

merchant  at ,  in  good  standing  and  credit,  for 

the  sum  of dollars;    and  for  the  payment  of 

said  sum  he  took  the  bill  of  the  said  A.B.,  drawn  on 
and  accepted  by  one  C.D.,  payable  in  ....  months 
after  date,  which  bill  was  at  the  time  held  and  con- 
sidered an  approved  bill. 

No.  738. 

i.     Denial  of  Injury. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  said  dog  did  not  kill  the  sheep  alleged,  or  any 
one  of  them,  nor  did  he  injure  or  worry  them,  or  any 
of  them. 

No.  739. 

ii.      The  Same — Collision  on  Highway. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  at  the  time  mentioned  in  the  complaint,  the  de- 
fendant was  driving  his  said  carriage  in  the  highway, 
and  the  horse  of  the  plaintiff,  being  at  the  same  time 
there,  was  so  carelessly,  negligently  and  improperly 


884  FORMS    OF     ANSWERS. 

managed  by  the  plaintiff,  tha^  by  reason  thereof  the 
carriage  of  the  defendant,  without  any  fault  on  the  part 
of  the  defendant,  and  by  want  of  due  care  in  the  man- 
agement of  his  horse  by  the  plaintiff,  was  driven  against 
said  horse,  and  thereby  said  horse  sustained  the  injury 
alleged;  and  that  if  any  damage  happened  to  said  horse 
it  was  caused  by  such  accident,  and  not  by  the  fault  of 
the  defendant. 


2.  Excuse. — In   a  case   of  collision  between  a  steamer  and  a 
sailing  vessel,  matter  of  excuse  on  the  part  of  the  steamboat  must  be 
set  forth  clearly  in  the  answer  of  the  claimants,  and  must  be  proved  as 
laid.     (The  "Washington  Irving,"  Abb.  Adm.  336.)     He  who  avers  a 
fact  in  excuse  for  his  own  malfeasance  must  prove  it.    (Finn  v.  Vallejo 
Street  Wharf  Co.,  7   Cal.  253.)     In  a  collision  cause,  the  defendant 
cannot  rely  on  a  simple  negative,  but  must  state  the  circumstances 
relating  to  the  collision.      The  "Why  Not,"  Law  Rep.   2   Adm.  and 
Ecc.  265. 

3.  General  Denial. — In  an  action  for  injury  to  property,  alleged 
in  the  complaint  to  have  been  caused  by  the  negligence  of  the  defend- 
ant's agents,  an  answer  denying  every  allegation  in  the  complaint  puts 
in  issue  the  defendant's  liability;  and  it  is  not  necessary  to  aver  that  the 
injury  was  done  by  other  persons,  who  were  responsible  therefor,  and 
not  the  defendant.     Schular  v.  Hudson  River  R.R.  Co.,  38  Barb.  653. 

4.  General  Issue. — In  an  action  for  damages  for  diversion  of 
water  of  plaintiff's,  where  defendants  plead  the  general  issue,  it  is  not 
competent  for  the  defense  to  prove  that  a  prior  claim  to  the  water 
exists  in  a  third  party.     Such  a  defense  should  have  been  specially 
pleaded,  and  the  third  party  made  a  party  to  the  action.     (Humpreyes 
v.  McCall,  9  Cal.  59.)     That  the  overflow  or  leakage  was  occasioned, 
not  by  the  acts  or  negligence  of  the  defendants,  but  by  the  acts  or  neg- 
ligence of  another,  was  matter  of  denial  simply,  not  new  matter  of 
defense,  to  be  proved  only  when  defendants  open  their  case.     Jackson 
v.  F.  R.  Water  Co.,  14  Cal.  18. 

5.  Injury  by  Darn. — The  want  of  reasonable  care  on  the  part 
of  another  who  is  injured  by  the  breaking  of  a  dam  cannot  be  set  up 


BY   AGENTS,    ETC.  885 

in  defense  to  an  action  for  damages  for  the  injuries  thus  suffered. 
Fraler  v.  Sears  Union  Water  Co.,  12  Cat.  555* 

6.  Negligence  of  Plaintiff. — In  an  action  for  negligence,  the 
plaintiff  cannot  recover  if  his  own  or  his  agent's  negligence  contributed 
to  the  injury  complained  of.  (20  N.Y.  68;  32  Barb.  657;  33  Barb. 
429;  36  Barb.  230;  Cox  v.  Westchester  Turnpike  Co.,  Id.  414.)  So, 
where  the  plaintiff  left  his  horse  feeding  on  a  narrow  wharf,  from 
which  the  horse  was  thrown  into  the  water  from  a  collision.  (Morris  v. 
Phelps,  2  Hilt.  38;  citing  21  Wend.  615;  19  Id.  399;  2  Hall,  151;  12 
Pick.  177;  2  Id.  921;  see,  also,  24  N.Y.  430;  24  How.  Pr.  97;  8  Com. 
Bench  (N.S.)  572,  598;  10  Bosiv.  216.)  The  owner  of  a  cow,  who 
suffers  her  to  go  at  large,  on  the  public  street  of  a  city,  on  a  railroad 
track,  at  a  -time  when  cars  are  passing,  with  no  one  to  take  charge  of 
her,  in  the  absence  of  gross  negligence  on  the  part  of  the  railroad,  can- 
not recover  for  injuries  to  the  cow.  (4  N.Y.  349;  13  Id.  42;  13  Barb. 
390;  1 6  Id.  315;  21  Wend.  622;  2  E.  D.  Smith,  257;  Bowman  v.  Troy 
and  Boston  R.R.  Co.,  37  Barb.  516.)  Of  negligence  on  the  part  of 
the  plaintiff  and  the  burden  of  showing  and  disproving  it,  see  (Williams 
v.  O'Keefe,  24  How.  Pr.  16;  Ernst  v.  Hudson  River  R.R.  Co.,  Id.  97; 
reversing  32  Barb.  159;  19  How.  Pr.  205.)  For  mutual,  co-operating 
negligence,  see  Ante,  p.  152,  Note  19;  see,  also,  Thomas  v.  Kenyon,  i 
Daly,  132.)  But  a  negligent  act  or  omission  of  the  plaintiff  is  not 
ground  for  defense,  unless  it  contributes  to  produce  the  injury  com- 
plained of.  Haley  v.  Earle,  30  N.Y.  208;  Teal  v.  Barden,  40 
Barb.  137. 


CHAPTER  IV. 

SLANDER    OF    TITLE. 

No.  740. 

i.    Slander  of  Title. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  [Allege  truth  of  words  spoken,  as  in  Form  No.  711.] 

II.  Defendant  denies  that,  by  the  words  alleged  in 
the  complaint  to  have  been  spoken  by  him,  the  plaintiff 
was  injured  in  any  manner,  or  to  any  amount  whatever. 

III.  And  the  defendant  denies  that  the  said  words 
were  uttered  maliciously. 


CHAPTER  V. 

TRESPASS. 

No.  741- 

i.     Trespass  on  Land — Denial  of  Plaintiff's   Title. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  said  dwelling  house  [or  land]  was  not  the 
plaintiff's  as  alleged,  or  at  all. 


FOR   TRESPASS.  887 

1.  General  Issue. — In  an  action  for  trespass  or  trespass  on  the 
case,  what  is  put  in  issue  by  the  general  issue,  «ee  (Richardson  v.  City  of 
Boston,  19  How.  U.S.  263;   Goddard  v.  Davis,  i    Cranch  C.  Ct.  33; 
Hogan  v.  Brown,  Id.  75;    Pancoast  v.  Barry,  Id.  176.)     Any  matter 
done  by  virtue  of  a  warrant  must  be  specially  pleaded.     Co.  Lit.  282; 
6  Com.  Dig.  Pleader,  E.\i;  i  Salk.  107;  Dougl.  611;  I   Saund.  298; 
13  Johns.  443;  Martin  v.  Clark,  Hempst.  U.S.  259. 

2.  Title   in   Defendant. — In  an  action  for  damages  for  an 
unlawful  entry  on  plaintiff's  premises,  an  answer  setting  up  title  in 
defendant,  and  that  the  plaintiff  had  by  issuing  an  injunction  deprived 
defendant  of  possession:  Held,  under  the  circumstances,  sufficient  to 
make  out  a  counter  claim.     (Ashley  v.  Marshall,  29  N.lr.  494.)     In 
trespass  on  land,  plaintiff's  title  is  not  put  in  issue  by  a  general  denial. 
Richardson  v.  City  of  Boston,  19  How.  U.S.  263;  Squires  v.  Seward, 
1 6  How.  Pr.  478;  Althouse  v.  Rice,  4  E.  D.  Smith,  348;  see  Ferris  v. 
Brown,  3  Barb.  105. 


JVo.  742. 

ii.    Denial  of  Plaintiff's  Possession. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  was  not  possessed   of  the  lands 
mentioned  in  the  complaint,  or  any  part  thereof. 


3.  Denial   of  Damage. — In   an  action  of  trespass,  where  there 
is  no  specific  denial  of  the  amount  of  damage  alleged  in  the  complaint, 
although  the  alleged  cause  of  damage  is  specially  traversed,  it  is  doubt- 
ful whether  such  answer  amounts  to  a  denial  of  the  damage.     Rowe  v. 
Bradley,  12  Cal.  226. 

4.  Insufficient  Defense. — In  trespass  quare  clausum  fregit,  the 
defense  that  the  act  complained  of  was  not  committed  where  the 
plaintiff  lays  it,  but  in  another  lot  where  defendant  was  justified  in  com- 
mitting said  act,  is  in  fact  only  a  denial  of  what  plaintiff  is  bound  to 
prove,  and  is  available  under  a  general  denial,  but  it  may  be  pleaded  as 
a  general  denial.     (Dorman  v.  Long,  2  Barb.  214.)     In  trespass  quare 


888  FORMS    OF    ANSWERS. 

clausum  fregit,  where  the  complaint  avers  matters  of  aggravation  after 
the  entry,  an  answer  justifying  the  aggravating  matter,  but  admitting 
plaintiff's  title  and  possession,  does  not  state  facts  sufficient  to  constitute 
a  defense.  Pico  v.  Colimas,  32  Cal.  578. 

5.  Ownership. — If  ownership  is  alleged  and  denied,  the  issue 
is  immaterial.     (Kissam  v.  Roberts,  6  Bosw.  154.)     If  the  defendant 
seeks  to  justify  the  taking,  by  proof  of  ownership  in  a  third  person,  he 
must  set  up  in  his  answer,  not  only  such  property  in  the  third  person, 
but  also  connect  himself  with  such  owner,  by  averring  that  the  taking 
was  by  his  authority,  or  by  virtue  of  process  or  right  against  such  owner. 
Kissam  v.  Roberts,  6  Bosw.  154. 

6.  Possession  and  Title  must  be  Traversed. — In  an  action 
for  trespass  to  lands,  where  the  answer  does  not  traverse  the  plaintiff's 
possession  or  title,  he  is  not  put  to  prove  his  title,  although'the  land  be 
wild  and  vacant.     (O'Reilly  v.  Davis,  4  Sandf.  722.)     Possession  by 
plaintiff  may  be  proved  under  the  general  issue.     Babcock  v.  Lamb,  i 
Cow.  238;  Sanders  v.  Wilson,  15  Wend.  338. 

7.  Possession,  Insufficient  Allegation. — In  an  action  for  a 
trespass  upon  land,  alleged  by  the  complaint  to  be  in  the  possession  of 
the  plaintiff  at  the  time  of  the  unlawful  entry  thereon  by  the  defendants, 
it  is  not  a  sufficient  traverse  of  the  allegation  of  possession,  for  the 
defendants  to  aver,  in  their  answer,  that  to  the  best  of  their  information 
and  belief  they  did  not  commit  the  grievance  upon  any  land  in  the  law- 
ful possession  of  plaintiff.     McCormick  v.  Baily,  10  Cal.  230. 

8.  Possessory    Title. — A    plea    of    possessory   title   under  a 
demise  from  a  third  person,  if  it  did  not  give  express  color,  was  bad,  as 
amounting  to  the  general  issue.     Collet  v.  Flinn,  5  Cow.  466;  Under- 
wood v.  Campbell,  13  Wend.  78. 

9.  Title. — In  trespass  quare  clausum  fregit  in  a  justice's  court, 
defendant  may  entitle  himself  to  a  verdict  by  showing  either  title  in 
himself,  title  in  a  third  person,  or  possession  out  of  the  plaintiff.     Doug- 
las v.  Valentine,  7  Johns.  273;  explaining  Strong  v.  Smith,  2  Cai.  28. 


FOR   TRESPASS. 


No.  743. 

iii.   Justifying  Trespass — Fences  Defective. 
[TITLE.] 

The  defendant  answers  to  the  complain^  and 
alleges: 

I.  That  the  plaintiff  and  defendant  occupy  farms  con- 
tiguous to  each  other,  and  separated  by  a  fence  which 
the  plaintiff  was  bound  to  keep  in  repair.     The  plaintiff 
neglected  to  keep  the  fence  in  repair,  by  means  where- 
of the  cattle  of  the  defendant  escaped  over  the  fence 
and  on  to  the  premises  of  the  plaintiff,  and  thereby  the 
defendant  committed,  by  his  cattle  and  without  his  fault, 
the  supposed  injury  set  forth  in  the  complaint  as  done 
by  the  defendant's  cattle. 

II.  That  the  defendant,  as  soon  as  he  had  notice  of 
the  escape  of  his  cattle,  entered  upon  the  plaintiff's 
premises  to,  and  did  drive  them  out,  doing  no  unneces- 
sary damage,  which  is  the  alleged  trespass  committed 
by  the  defendant,  and  set  forth  in  the  complaint. 

10.  Cattle. — That  the  fence  through  which  the  cattle  entered,  and 
which  the  plaintiff  was  bound  to  keep  in  repair,  was  defective,  may  be 
shown  by  the  defendant.  Golden  v.  Eldred,  15  Johns.  220. 

JVo.  744- 

iv.  Justification  of  Rebuilding  Fence. 
[TITLE.  ] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  the  fence  mentioned  in  the  complaint  was  a 
part  of  the  division-fence  upon  the  line  between  the  lands 


890  FORMS    OF    ANSWERS. 

of  the  plaintiff  and  of  the  defendant,  which,  by  a  previous 
agreement  between  them,  the  defendant  was  bound  to 
make,  and  keep  in  repair. 

II.  That  he  took  up  and  removed  the  part  of  said 
fence  which  he  was  bound  to  repair,  and  replaced  the 
same  with  a  new  fence  upon  the  said  division  line,  and 
with  as  little  injury  as  possible  to  the  plaintiff's  crops, 
as  he  had  full  right  to  do;  which  are  the  acts  com- 
plained of. 


11.  Easement. — When  the  act  appears  to  be,  prima  facie,  a  tres- 
pass, any  matter  of  justification,  by  virtue  of  any  authority  or  easement, 
must  be  pleaded.  (Babcock  v.  Lamb,  i  Cow.  238;  Saunders  v.  Wil- 
son, 15  Wend.  338.)  In  trespass  quare  clausum  fregil,  an  answer  justi- 
fying merely  because  the  defendant  has  an  easement  on  the  land,  con- 
tains no  defense.  Pico  v.  Colimas,  32  Cal.  578. 


No.  745. 

v.     Leave  and  License. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  acts  complained  of  were  done  by  leave  of 
the  plaintiff. 

12.  License. — License  to  enter  on  the  premises  of  another  must 
be  specially  pleaded.     (Haight  v.  Badgeley,  15  Barb.  499;  Beatty  v. 
Swarthout,  32   Barb.  293.)     But  entering  under  a  void  license  is  a 
trespass.     Chamber  v.  Edson,  9  Johns.  362. 

13.  Mineral  Lands. — Where  a  miner  enters  upon  land  in  the 
possession  of  another,  claiming  the  right  to  enter  for  mining  purposes, 
he  must  justify  his  entry  by  showing:   First,  That  the  land  is  public 
land;  Second,  That  it  contains  mines  or  minerals;  Third,  that  he  enters 
for  the  bona  fide  purpose  of  mining;   and  such  justification  must  be 


FOR    TRESPASS.  89! 

affirmatively  pleaded  in  the  answer,  with  all  the  requisite  averments  to 
'show  a  right,  under  the  Statute  or  by  law,  to  enter.     Lentz  v.  Victor,  17 
Cctl.  271. 

14.  Statute,  how  Pleaded. — In  an  action  for  damages  for  an 
alleged  trespass  upon  the  plaintiff's  land,  if  the  defendant  justifies  the 
alleged  trespass  under  the  Act  in  relation  to  laying  out  and  establishing 
roads,  he  must  in  his  answer  show  a  strict  compliance  with  all  the  pro- 
visions of  the  Statute.  Sherman  v.  Buick,  32  CaL  241. 


No.  746. 

i.     Trespass  on  Chattels — Denial  of  Right  of  Possession. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  was  not  entitled  to  the  possession 
of  the  goods  [or  lands]  mentioned  in  the  complaint. 

JVo.  747. 

ii.  The  Same — Denial  of  Breaking. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  defendant  did  not  break  nor  enter  the  prem- 
ises of  the  plaintiff,  as  alleged,  or  in  any  other  manner. 

JVo.  748. 

iii.     The  Same — Denial  of  Taking. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  did  not  take  nor  carry  away  said  goods,  as 
alleged. 


892  FORMS    OF     ANSWERS. 

15.  Essential  Averments. — An  answer  justifying  a  trespass  on 
the  ground  of  official  duty,  should  aver  that  defendant  is  an  officer,  and 
what  his  official  duly  is,  and,  if  there  are  many  defendants,  it  should 
state  they  entered  in  aid  of  the  officer.     (Pico  v.  Colimas,  32  Cal.  578.) 
An  answer  justifying  a  seizure  under  a  writ  of  atyachment  does  not 
state  facts  constituting  a  defense,  if  it  fails  to  allege  that  defendant  in 
the  attachment  suit  was  the  owner  of  the  property.     (Richardson  v. 
Smith,  29  Cal.  529;  Richardson  v.  Hall,  21  Md.  399.)     In  an  answer 
justifying  seizure  under  execution,  defendant  should  not  only  set  out 
the  execution,  but  the  judgment  in  which  it  is  founded,  and  that  he  is 
an  officer,  properly  acting  under  such  execution.     McDonald  v.  Pres- 
cott,  2  Nev.  109. 

16.  Facts  must  be  Set  up. — It  may  be  laid  down  as  a  general 
rule,  that  the  facts  constituting  the  justification  must  be  fully  set  up. 
(McComber  v.  Reed,  28  Cal.  281;  Towdy  v.  Ellis,  22  Cal.  659;  Knox 
v.  Marshall,  19  Cal.  617;  Lentz  v.  Victor,  17  Cal.  271;  Killey  v.  Scan- 
nell,  12  Cal.  73.)     Nor  can  this  justification  be  made  by  a  general  de- 
nial of  the  allegations  of  the  complaint.     Glazier  v.  Clift,  10  Cal.  303. 

17.  Forfeitures. — A  plea  alleging  a  seizure  for  a  forfeiture  as  a  just- 
ification to  an  action  of  trespass,  should  not  only  state  the  facts  which  are 
relied  on  to  eatablish  a  forfeiture,  but  should  also  aver  directly  that  by 
reason  thereof  the  property  became  and  actually  was  forfeited,  and  was 
seized  as  forfeited.     Gelston  v.  Hoyt,  3  Wheat.  246. 

18.  Official  Duty. — An  answer  justifying  a  trespass  on  the  ground 
of  official  duty,  should  aver  that  the  defendant  is  an  officer,  and  what  his 
official  duty  is.     If  there  are  other  defendants,  and  the  answer  is  in- 
tended to  apply  to  them,  it  should  state  that  they  entered  in  aid  of  the 
officer.     Pico  v.  Colimas,  32  Cal.  578. 

19.  General  Denial. — Trespass. — In  an  action  for  damages  for 
trespass,  under  a  mere  denial  defendant  may  show  that  article  destroyed 
or  injured  was  worthless.     Dunlap  v.  Snyder,  17  Barb.  561. 


FOR    TRESPASS.  893 

No.  749. 

v.    Justifying  Trespass,  by  Virtue  of  Requisition  of  Claim  and  Delivery. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  at  the  times  mentioned  in  the  complaint,  the 

defendant  was  Sheriff  of  the  County  of .  . ,  in  this 

State,  duly  elected  and  qualified  as  such. 

II.  That  in  an  action  brought  by  one  M.  N.  against 

one  O.  P.,  in  the  Court  of ,  to  recover  the  pos-% 

session  [among  other  things]  of  the  property  mentioned 
in  the  complaint  in  this  action,  said  M.  N.  delivered  to 
this  defendant  an  affidavit  made  by  him  [or  made   in 
his  behalf],  and  a  notice  indorsed  thereon,  describing 
the  property  mentioned  in  the  complaint,  and  requiring 
this  defendant  to  take  the  same  from  said  O.  P.,   and 
deliver  it  to  said  M.  N. ;  and  at  the  same  time  delivered 
to  this  defendant,  as  such  sheriff,  a  written  undertaking 
as  required   by    law   in  such  case,  of  which  affidavit, 
notice,  and  undertaking,  copies  are  hereto  annexed  as  a 
part  of  this  answer. 

III.  That  by  virtue  of  said  proceedings,  the  defend- 
ant  took  and  detained   the   goods  mentioned    in  the 
complaint,   which  are    the    acts  of  which  the    plaintiff 
complains. 

20.  Form. — This  Form  is  from  Abbotts'  Forms,  No.  963. 

21.  What  Must  be  Shown. — A  plea  justifying  the  taking  upon 
a  writ  of  replevin,  must  show  the  execution  and  delivery  to  him  of  the 
replevin  bond  and  affidavit  with  the  writ.     (Morris  v.  Van  Voast,  19 

Wend.    283.)     That  a  writ  of  replevin  may  be  pleaded  in  justification, 


894  FORMS    OF    ANSWERS. 

and  the  distinction  between  such  a  writ  and  an  execution  denned,  in 
Foster  v.  Pettibone,  20  Barb,  350;  disapproving  Stimpson  v.  Reynolds, 
14  Id.  506. 

J\To.  750, 

v.   Justification  under  Execution. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  at  the  time  mentioned  in  the  complaint,  the 

defendant  was  Sheriff  of  the  County  of ,  in  this 

State,  duly  elected  and  qualified  as  such. 

II.  That  heretofore,  in  an  action  in  \state  the  court], 
wherein    A.  B.    was   plaintiff,    and  C.  D.    the   plaintiff 
herein  was  defendant,  judgment  was,   on  the  ....  day 

of ,  1 8 . . ,  rendered  in  favor  of  the  said  A.  B., 

plaintiff  in  said  action,  against  the  said  C.  D.,  defendant 
therein,  for  the  sum  of dollars,  as  by  the  judg- 
ment roll  in  said  action,  on  file  in  the  office  of  the  County 
Clerk  of  said  County,  more  fully  appears. 

III.  That  afterwards,  on  the  ....  day  of  . . .  .x. .  . ., 
1 8 . . ,  execution  against  the  property  of  C.  D.,  based 
upon  such  judgment,  was  issued,  and  directed  to  and 
delivered  to  this  defendant,  as  Sheriff  of  the  said  City 

and  County  of ,   for  service;   whereby,   after 

containing  the  statement  and  recital  of  the*  matters  by 
law  required  to  be  stated  and  set  forth  in  such  case,  and 

after  setting  forth  that  the  sum  of dollars  was 

then  actually  due  on  the  said  judgment,  this  defendant 
was  in  substance  commanded  to  satisfy  the  said  judg- 
ment out  of  the  personal  property  of  the  said  judgment- 
debtor  within  this  defendant's  county;  or,  if  sufficient 
personal  property  could  not  be  found,  then  out  of  the 


FOR    TRESPASS.  895 

real  property  in  his  county  belonging  to  such  judgment- 
debtor,  and  to  return  the  said  execution  within  sixty 
days  after  its  receipt  by  him,  as  required  by  law. 

IV.  That  under  and  by  virtue  of  the  said  execution, 
this  defendant,  as  Sheriff  of  the  City  and  County  of 

,  and  not  otherwise,  levied  upon  certain  goods 

and  chattels,  of  the  character  and  description  of  those 
mentioned  and  described  in  the  complaint,  and  took  the 
same  into  his  custody,  which  defendant  believes  to  be 
the  goods  and  chattels  referred  to  in  the  complaint,  and 
that  the  said  levy  and  taking  and  detention  as  aforesaid 
constitute  the  supposed  wrongful  taking  in  the  com- 
plaint alleged. 

V.  And  this  defendant,  upon  his  information  and  be- 
lief, avers  that  the  goods  levied  on  as  aforesaid  were  at 
the  time  of  said  levy  the  property  of  the  said  C.  D. 


22.     Note. — In  the  case  of  an  execution,  the  sheriff  must  take  only 
the  property  of  the  defendant.   Foster  v.  Pettibone,  20  Barb.  361. 


No.  751. 

vi.  Justification  of  Breaking  Plaintiff's  House  bv  Virtue  of  Search-  Warrant. 
[TITLE.] 

The     defendant    answers    to    the    complaint,    and 
alleges: 

I.   That  at  the  time  mentioned  in  the  complaint,  one 

A.  B.  was  a  justice  of  the  peace  of  the  Town  of , 

in  the  County  of ,  and  was  authorized  to  issue 

and   did   issue  a   warrant  in   writing,  under  his  hand 


896  FORMS    OF    ANSWERS. 

and  seal,  directed  to  any  constable  of  the  said  Town 
reciting  that  whereas  information  on  oath  had  been 
given  fo  him,  the  said  A.  B.,  a  justice  of  the  peace 

as  aforesaid,  by  one  C.  D.,  of ,  that   [specify 

the  goods~\  had  lately  been  feloniously  taken  and  carried 
away  by  E.  F.,  from,  etc,  and  that  the  said  [goods],  or  a 
part  thereof,  were  then  concealed  in  a  cellar  of  L.  M., 

at ;    and  the  said   Justice  did,  in  and  by  the 

said  warrant,  in  the  name  of  the  people  of  this  State, 
command  and  authorize  them,  the  said  constables,  or 
any  of  them,  with  proper  assistance,  in  the  daytime,  to 

enter  into  the  cellar  of  the  said  L.  M.,  at ,  and 

there  diligently  search  for  the  said  [goods],  and  if  the 
same,  or  any  part  thereof,  should  be  found,  then  the 
said  constables  were,  in  and  by  the  said  warrant,  like- 
wise commanded  to  bring  the  same  so  found,  together 
with  the  said  L.  M.,  or  the  person  in  whose  custody  the 
same  should  be  found,  before  him,  the  said  Justice,  or 
some  other  justice  of  the  peace  of  said  Town,  etc.,  to 
be  dealt  with  as  the  law  directs. 

II.  That  said  warrant  was  delivered  to  G.  H.,  one  of 
the  defendants,  who  then  was  one  of  the  constables  of 
the  said  Town,  to  be  executed  according  to  law,  by  vir- 
tue of  which  he  went  to  the  cellar  of  the  said  L.  M. 
mentioned  in  the  warrant,  and  which  was  part  and  par- 
cel of  and  belonged  to  the  dwelling-house  mentioned 
in  the  complaint,  and  there  finding  me  door  thereof  shut 
and  fastened,  did,  in  a  friendly  and  peaceable  manner, 
demand  and  require  that  the  said  door  should  be 
opened,  which  was  then  and  there  refused;  and  that 
thereupon  the  said  G.  H.,  one  of  the  defendants,  in  order 
to  execute  the  said  warrant,  did  break  open  the  said 
door,  doing  as  little  damage  as  possible,  and  did  search 


FOR    TRESPASS.  897 

there  for  said  \jroods\>  and  took  and  carried  away  there- 
from [specify  t/ie goods],  being  part  of  the  said  \goods\ 
mentioned  in  the  said  warrant,  and  brought  the  same 
before  the  said  Justice,  as  he  might  lawfully  do,  which 
are  the  acts  of  which  the  plaintiff  complains. 

23.  Form. — This  form  is  in  substance  from  Abbotts'  Forms,  No. 
999,  and  is  sustained  by  Bell  v.  Clapp,  10  Johns.  263. 

24.  Warrant. — In  trespass,  any  matter  done  by  virtue  of  a  war- 
rant must  be  specially  pleaded.     Co.  Lit.  282  b.;  6  Com.  Dig.  Pleader, 
E.  1.7;  i   Salk.  107;  Dougl.  611;  i  Saund.  298;  13  Johns.  443;  Mar- 
tin v.  Clark,  Hempst.  259. 


57 


FORMS  OF  ANSWERS — SUBDIVISION  FIFTH. 

For  the  Possession  of  Specific  Property. 


CHAPTER  I. 

FOR      PERSONAL      PROPERTY. 

No.  752. 

i.     Conversion — Denial  of  Plaintiff's  Ownership. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies 
that  at  the  time  of  the  alleged  conversion,  the  plaintiff 
was  the  owner,  or  entitled  to  the  possession  of  the 
goods,  wares,  and  merchandise,  mentioned  in  the  com- 
plaint [or  any  of  them]. 


1.  Property  of  Decedent. — In  an  action  by  an  administrator 
against  a  person  claiming  to  hold  the  decedent's  property  by  virtue  of 
a  gift  or  transfer  from  the  decedent,  if  the  defendant  in  his  answer 
denies  that  the  plaintiff's  intestate  at  the  time  of  his  death  owned  or 
was  in  possession  of  the  property,  he  may  on  the  trial  claim  or  es- 
tablish a  title  to  the  property,  by  gift  from  the  intestate;  especially  after 
the  plaintiff  has  himself  proved  that  the  defendant  had  claimed  the 
property  as  such.  Woodruffs.  Cook,  25  Barb,  505. 


FOR  PERSONAL  PROPERTY.  899 

No.  753. 

• 

ii.     T^i?  Same — Dental  of  Bailment. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  that  the 
defendant  has  never  received  the  plaintiff 's  goods  men- 
tioned in  the  complaint,  as  bailee,  as  alleged,  or  at  all. 


2.  Issuable  Fact. — Whatever  is  the  allegation  of  a  complain* 
showing  that  defendant  received  possession,  is  issuable.  Elton  v. 
Markham,  20  Barb.  343. 


.  754. 

iii.      The  Same — Lien  upon  Goods  Detained. 
[TITLE.] 

I.  That    on     the  ....  day    of ,  18 . . ,   the 

plaintiff   deposited  the  goods  mentioned  in  the  com- 
plaint with  the  defendant,  for  storage,  agreeing  to  pay 
for  the  same  [one  dollar]  per  [ton]  per  [month]. 

II.  That  the  defendant  has  always  been,  and  still  is, 
ready  and  willing  to   deliver    the  said  goods  to   the 
plaintiff,  upon  the  payment  of  the  storage -money  due. 

III.  That  the  plaintiff  has  not  paid,  or  tendered  to  the 
defendant  the  storage  money  due. 


3.  Warehouseman. — A  person  who  is  not  engaged  in  ware- 
housing as  a  business,  has  no  lien  for  his  compensation  for  the  chattels 
kept  by  him  on  storage.  3  Hill,  491;  3  E.  D,  Smith  267;  Alt  v. 
Weidenberg,  6  Bosw.  176. 


9OO  FORMS    OF    ANSWERS. 

No.  755. 
\ 

iv.      The  Same — Lien  for  Services. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  said  goods  were  manufactured  by  the  defend- 
ant, as  tailor;  and  that  he  detained  them  by  virtue  of 
his  lien  as  a  mechanic,  and  the  manufacturer  thereof, 

as  security  for  the  payment  of dollars,  which 

is  the  amount  due  him  from  the  plaintiff  for  work  and 
labor  in  manufacturing  them. 

II.  That  defendant  has  always  been  and  still  is  ready 
and  willing  to  deliver  the  said  goods  to  the  plaintiff, 
upon  receiving  the  said  amount. 

III.  That  the  plaintiff  has  not  paid  or  tendered  to  the 

defendant    the    said    amount  of dollars    due 

thereon. 


4.  Former  Recovery. — A  plea  of  former  recovery,  in  an  action 
based  on  a  wrongful  sale  of  property,  must  show  that  the  conversion 
was  identical  with  the  sale.     Hopkinson  v.  Shelton,  37  Ala.  306. 

5.  General  Denial. — For  conversion  of  property,  a  general  denial 
puts  in  issue  the  conversion  and  plaintiff's  title.     Robinson  v.  Frost,  14 
Barb.   536;    Corwin  v.  Corwin,  9  Id.  219;  but  see  Ely  v.  Ehle,  3  Corns. 
510;   Jacobs  v.  Remson,   12   Abb.  Pr.  390;    Beaty  v.  Swarthout,  32 
Barb.  293;  Davis  v.  Hoppack,   6  Duer,  256;  Heine  v.  Anderson,  2 
Duer,  318;  Gorham  v.  Gary,  i  Abb.  Pr.  285. 

6.  Justification  by  Officer. — Where  an  officer  justifies  under 
an  execution  issued  by  a  justice,  his  pleading  must  show  that  the  justice 
had  jurisdiction  of  the  cause.    (Cleveland  v.  Rogers,  6  Wend.  438.)    An 
officer  having  made  a  proper  levy  cannot  be  sued  in  trover  by  the 
debtor,  for  a  part  of  the  goods  which  was  not  sold,  without  proving  a 
demand  that  he  redeliver  them,  and  a  refusal.     -Whitmarsh  v.  Angle,  3 


FOR    PERSONAL    PROPERTY.  QOI 

Code  R.   53;    S.C.,  i  Am,  Law  R.  (N.S.)   595;    Laman  v.  Luce,  23 
Barb.  240. 

7.  Plaintiff  Regaining  Possession. — The  fact  that  the  plaintiff 
has  regained  possession  before  suit  brought  is  no  defense  to  an  action 
for  the  conversion.     (Murray  v.  Burling,  10  Johns.  172;  Kerr  v.  Mount, 
28  N. Y.  659.)     It  only  goes  to  the  mitigation  of  damages.     Reynolds 
v.  Shuler,  5  Cow.  323;  Connahz>.  Hale,  23  Wend.  462. 

8.  Principal  and  Agent. — An  action  brought  by  an  agent  in  his 
own  name,  for  a  trespass  in  converting  coin,  in  which  the  jury  found 
that  the  coin  belonged  to  the  principal;  such  action  is  no  bar  to  an 
action  by  the  principal  for  the  coin.     Pico  v.  Webster,  12  Cal.  140. 

9.  Replevin,   -when  a   Bar. — Plaintiff  brought  an    action  of 
replevin  to  recover  certain  property,  and  obtained  a  judgment  for  its 
restitution,  and  damages  for  its  illegal  detention.     Defendants  paid  the 
damages,  but  the  property  was  not  restored.     Plaintiff  then  brought  an 
action  of  trover  to  recover  the  value;  defendants  pleaded  the  former 
recovery  as  a  bar  to  the  action  of  trover,  the  judgment  in  replevin  not 
being  satisfied.    Held,  that  the  judgment  in  replevin  did  not  constitute  a 
bar  to  the  action  in  trover.     Nickerson  v.  Cal.  Stage  Co.,  10  Cal.  520. 

10.  Title  in  Another. — Where,  in  an  action  for  conversion,  the 
issue  under  the  pleadings  is  whether  the  plaintiff  at  the  time  of  the  con- 
version owned  the  property,  and  as  owner  was  entitled  to  immediate 
possession,  according  to  the  allegation  of  his  complaint,  the  defendant 
has  a  right  to  prove  that  the  legal  title  was  at  the  time  vested  in  a  third 
person,  and  that  the  plaintiff  was  not  in  possession,  the  above  allegation 
not  being  a  mere  conclusion  of  law  from  facts  previously  stated,  but  the 
affirmation  of  a  fact.    (Davis  v.  Hopock,  6  Duer,  254.)     A  sheriff  may 
justify  in  this  form  of  action,  by  showing  want  of  title  in  the  plaintiff. 
(Richeyy.  Stryker,  28  N.Y.  45;  26  How.Pr.  75;  S.C.,  31  N.Y.  140; 
Hall  v.  Stryker,  27  N.Y.  596.)     In  an  action  for  wrongfully  taking  per- 
sonal property,  the  answer  alleged  that  the  defendant  took  the  property 
as  constable,  under  an  execution  against  a  third  party,  in  whose  posses- 
sion it  was,  but  did  not  rebut  the  allegation  that  it  was  the  property  of 
the  plaintiff.     The  answer  was  improperly  stricken  out.    Barley  v.  Can- 
non, 17  Mo.  595. 

11.  Value. — In  an  action  in  the  nature  of  trover,  the  usual  aver- 
ment in  the  complaint  of  the  value  of  the  property  converted  is  not 
traversable  matter.     The  defendant  cannot  take  issue  upon  it;  and  his 


9O2  FORMS    OF    ANSWERS. 

omission  to  answer  it  does  not  admit  its  truth.  It  is  not  a  "  material 
allegation,"  within  the  meaning  of  Section  168  of  the  Code.  Hence, 
where  the  answer  does  not  deny  the  averment  of  value,  the  plaintiff 
must,  notwithstanding,  prove  the  amount  of  his  damages.  (Connoss  z>. 
Meir,  2  E.  D.  Smith' sC.  P.  R.  314.)  In  trover,  trespass,  or  replevin, 
it  is  not  necessary  to  deny  the  value  of  the  damages  alleged  in  the  com- 
plaint. So  held  in  Wisconsin.  (Jenkins  v.  Steamka,  19  Wis.  126.)  In 
an  action  for  the  conversion  of  chattels,  alleged  by  the  plaintiff  to  be  of 
a  certain  value,  defendant  denied  that  they  were  of  such  value,  or  of  any 
greater  value  than  a  certain  less  sum  named :  Held,  an  admission  that 
they  were  worth  the  less  sum  named.  Carlyon  v.  Lannan,  4  Nev,  156. 

No.  756. 

i.    Claim  and  Delivery. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies: 

I.  That  the  plaintiff,  at  the  time  stated  in  the  com- 
plaint, or  ever,  or  at  all,  was  in  possession  of  the  goods 
described  in  the  complaint,  or  any  of  them. 

II.  Denies  that  said  goods,  or  any  of  them,  are  or 
ever  were  the  property  of  the  plaintiff. 

III.  Denies  that  said  goods  are  or  were,  at  the  .time 
alleged,  or  at  any  time  since,  of  the  value  of  ......... 

dollars,  or  any  amount  greater  than dollars 

11.  Another  Action  Pending. — In  an  action  against  a  con- 
stable to  recover  possession  of  personal  property  taken  under  attach- 
ment, the  pendency  of  another  suit  for  the  same  goods  by  the  plaintiff's 
vendor  is  no  defense.  (O'Connors.  Blake,  29  Cal.  312.)  A  plead- 
ing by  a  defendant,  in  an  action  of  replevin,  which  admits  the  taking 
complained  of,  but  justifies  •  under  legal  process,  and  prays  judgment, 
restitution  of  the  property  replevied,  or  for  its  value,  contains  only 
matter  of  confession  and  avoidance,  and  under  the  fifty-sixth  sec- 
tion of  the  Practice  Act  is  deemed  controverted  by  plaintiff.  Stringer 
z>.  Davis,  35  Cal.  25. 


FOR  PERSONAL  PROPERTY.  903 

12.  Delivery  to  Third  Person. — If,  during  the  pendency  of  an 
action  to  recoverthe  possession  of  personal  property,  and   before  the 
trial  thereof,  the   defendant   has   been   required   to   deliver,    and  has 
delivered  the  property  to  another  person  entitled  to  its  possession,  as 
against   both  plaintiff  and  defendant,  that  fact  may  be  set  up  in  the 
answer,  or  in  a  supplemental  answer  for  the  purpose  of  defeating  a 
recovery  of  the  possession  or  of  the  value  of  the  property.     Bolander 
v.  Gentry,  36  Cal.  105. 

13.  Demand. — If  the  defendant  does  not  object  to  the  sufficiency 
of  a  demand,  and  refuses  to  deliver  up  the  property  for  improper 
reasons,    a   further   demand   will   be   unnecessary.     King  v.  Fitch,  i 
Ktyes,  432. 

14.  Fraudulent  Transfer. — In  an  action  against  a  sheriff,  to 
recover  the  possession  of  personal  property,  it  is  a  good  defense  for  the 
sheriff  to  show  that  the  defendant  in  the  attachment,  when  insolvent, 
sold    the  property  to  the  plaintiff,  to  defraud    his  creditors,  with  the 
knowledge  of  plaintiff,  and  that  said  defendant  has  since  been  declared 
a  bankrupt,  and  the  sheriff  has,  on  demand  of  the  assignee  in  bank- 
ruptcy, delivered  him  the  goods.     Bolander  v.  Gentry,  36  Cal.  105. 

15.  General  Denial. — In  an  action  for  the  claim  and  delivery 
of  personal  property,  the  denial  by  the  defendant  of  the  averment  in 
the  complaint  of  the  particular  facts  upon  which  plaintiff  claims  the 
title  and  right  of  possession,  and  wrongful  detention,  is  sufficient,  with  a 
denial  of  the  subsequent  averment  of  the  particular  facts  upon  which 
his  title  and  right  of  possession  are  claimed.      (Nudd  v.  Thompson, 
34  Cal.  39.)     Evidence  of  a  levy  under  an  execution  prior  to   that 
stated  in  the  answer  was  not  admissible  under  the  general  denial.     If 
defendant  had  made  a  prior  levy,  and  was  thereby  entitled  to  posses- 
sion of  the  goods,  it  was  matter  to  be  specially  pleaded.     (Graham  v. 
Harrower,  18  How.  Pr.  144.)     In  an  action  to  recover  the  possession 
of  personal  property,  the  defendant  may  set  up  a  general  denial,  and 
also  a  justification.     Hackley  v.  Ogmun,  10  How.  Pr.  44. 

16.  Insufficient   Denials. — Where   the   complaint   in   replevin 
averred  that  on  a  certain  day  plaintiff  was  the  owner  and  in  possession 
of  the  property,  and  that  its  value  was  $1,000;    and  the  answer  denied 
that  on  the  day  specified   "  the  plaintiff  was  the  owner  and  lawfully  in 
possession,"  and,  as  to  its  value,  averred  that  the  defendant   has  no 
knowledge,  etc.,  and  therefore  denies  that  it  is  worth  §1,000:     Held, 


904  FORMS    OF    ANSWERS. 

that  the  answer  is  insufficient,  because  it  raises  an  immaterial  issue  as 
to  time;  and  as  to  the  possession  of  the  property,  that  it  amounts  merely 
o  a  conclusion  of  law.  Kuhland  v.  Sedgwick,  17  Cat.  123. 

17.  Justification. — An  officer,  to  justify  the  seizure  of  property  in 
possession  of  a  stranger  to  the  writ  which  he  has  executed,  must  plead 
specially  such  justification.     He  cannot  justify  under  a  general  denial  of 
the  allegations  of  the  complaint.     (Glazier  v.  Clift,  10  Cal.  303;  Coles 
v.  Soulsby,  21  Cal.  47.)     He  may  plead  the  property  to  have  been  in 
possession  of  the  defendant  in  the  suit.     In  such  a  case,  it  is  not  neces- 
sary that  the  defendant  should  specially  plead  want  of  notice  and  de- 
mand in  order  to  make  such  a  defense.     (Killey  v.  Scannell,  12  Cal. 
73.)     In  an  action  of  replevin  against  a  sheriff,  he  must  justify  not 
only  the  execution,  but  with  the  judgment   itself,  whenever  he  takes 
property  which  is  in  the  possession  of  a  stranger  to  the  writ.     (Knox  v. 
Marshall,  19  Cal.  617.)     It  does  not  state  facts  constituting  a  defense, 
if  it  fails  to  allege  that  the  defendant  in  the  attachment  suit  was  the 
owner  of  the  property.     (Richardson  v.  Smith,  29  Cal.  529.)     It  is  not 
necessary  that  his  answer  should  set  forth  minutely  every  fact  relating  to 
the  attachment  suit.     An  answer  which  stated  the  time  of  commence- 
ment of  the  action,  the  names  of  parties,  the  court,  and  that  the  goods 
were  taken  by  virtue  of  a  writ  of  attachment  issued  thereon,  held  to  be 
sufficient,  Towdy  v.  Ellis,  22  Cal.  650. 

18.  Non  Cepit. — A  plea  of  non  cepit  in  replevin  put  in  issue  the 
question  of  general  property  only,  and  not  of  special  property;  at  least 
in  a  suit  between  a  principal  and  his  agent.     On  such  a  plea,  the  issue 
must  be  for  the  defendant,  if  there  was  not  a  wrongful  taking  of  the 
goods  from  the  possession  of  another;  for  a  wrongful  detainer  after  a 
lawful  taking  is  not  equivalent  to  a  wrongful  original  taking.     Meany 
v.  Head,  i  Mass.  319. 

19.  Subsequent  Proceedings. — If  he  relies  on  matters  occur- 
ing  after  issuance  of  attachment  operating  as  a  dissolution  of  the  same, 
such  matter  must  be  specially  pleaded.     (McComb  v.  Reed,  28  Cal. 
281.)     If  it  it  be  necessary  to  aver  in  the  answer  that  the  writs  of  at- 
tachment and  execution  were  returned  executed  by  the  sheriff,  still  the 
omission  of  this  averment,  though  it  might  have  been  ground  of  de- 
murrer, was  no  ground  for  rejecting  all  evidence  under  such  justifica- 
tion.    Walker  v.  Woods,  15  Cal.  66. 


FOR  PERSONAL  PROPERTY.  905 

No.  757. 

ii.   The  Same — Title  in  Another  than    Plaintiff. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

That  the  property  described  in  the  complaint  was,  at 
the   time   stated  therein,  and  still   is  the   property  of 
,  and  not  the  property  of  the  plaintiff. 


20.  Denial  of  Plaintiff's  Title.— The  defendant,  whether  he 
laid  property  in  himself  or  in  a  stranger,  was  required  to  traverse  prop- 
erty in  the  plaintiff.     Rogers  v.  Arnold,  12  Wend.  30;  Prosser  v.  Wood- 
ward, 21  Id.  205;  Curtis  v.  Jones,  i  H<nu.  App.  Cas.  137;  3  Den.  590; 
Pringle  »,  Phillips,  I  Sandf.  292. 

21.  Fact  Denied. — In  claim  and  delivery,  the  denial  of  the  par- 
ticular facts  upon  which  the  plaintiff  claims  title  and  right  of  possession 
is  sufficient.     Nudd  v.  Thompson,  34  Cal.  39. 

22.  Form. — See,  as  to  form,  (Harrison  v.  Mclntosh,  i  Johns.  380; 
Ingraham  v.  Hammond,  i  Hill,  353.)     When  title  to  property  is  set  up 
in  a  stranger,  he  must  be  named.     Anstice  v.  Holmes,  3  Den.  244. 

23.  Literal   Denials    Insufficient. — If  the   complaint,  in  an 
action  to  recover  the  possession  of  personal  property,  avers  "that  the 
plaintiff  was  the  owner  and  in  possession  of  the  property,"  this  aver- 
ment is  not  traversed  by  an  answer  which  denies  that  the  "plaintiff 
was  the  owner  and  entitled  to  the  possession  of  the  property."     Rich- 
ardson v.  Smith,  29  Cal.  529. 

24.  Prayer. — In  an  action  to  recover  personal  property,  to  enable 
the  defendant  to  obtain  the  value  of  the  property  on  judgment  of  dis- 
missal against  the  plaintiff  for  failure  to  appear,  the  answer  must  con- 
tain some  allegation  or  prayer  relative  to  the  change  of  possession  from 
defendant  to  "plaintiff.     The  judgment  of  return   or  value  is   in  the 
nature  of  a  cross-judgment,  and  must  be  based  upon  proper  averments. 
(Gould  v.  Scannell,  13  Cal.  430)     If  the  plaintiff  takes  the  property, 


9O5  FORMS    OF    ANSWERS. 

the  defendant  must  claim  its  return  in  his  answer,  to  enable  the  Court 
to  give  the  judgment  in  the  alternative  form.     Id. 

25.  Sufficient  Denial. — A  complaint,  in  .an  action  to  recover 
personal  property,  averred  that  the  plaintiff  was  the  owner  and  possessor 
of  the  property  at  the  time  of  the  taking  by  defendant.  The  answer 
denied  this  allegation,  and,  in  addition,  averred  affirmatively  that  the 
property  was  at  that  time  owned  and  possessed  by  a  third  person. 
Held,  that  this  averment  was  but  another  form  of  denial,  and  not  new 
matter,  which,  under  the  system  of  replication  formerly  in  force,  was 
admitted  by  a  failure  to  reply.  Woodworth  v.  Knowlton,  28  Cat.  164. 


No.  758. 

iii.     TTie  Same — Defendant  Part   Owner. 
[TITLE.] 

The    defendant    answers    to    the    coifiplaint,    and 
alleges: 

That  at  the  several  times  mentioned  in  the  complaint, 
the  defendant  was,  and  still  is  the  owner  of  an  undivided 
one  half  of  said  goods,  wares,  and  merchandise;  and 
defendant  was  then  and  still  is  in  the  possession  of  the 
whole  of  said  goods. 


26.  Property  in  Defendant. — Property  is  a  good  plea  in  re- 
plevin; (Dermott  v.  Wallace,  i  Black  U.S.  96;)  but  must  be  specially 
pleaded.  (Dickson  v.  Mathers,  Hempst.  U.S.  65.)  A  plea  in  replevin, 
that  the  property  was  not  in  the  plaintiff,  is  informal,  but  sufficient,  and 
admits  proof  of  property  in  the  defendant  or  a  stranger.  (Dermott  v . 
Wallace,  2  Black  U.S.  96;  see,  also,  12  Wend.  R.  30,  34,  35.)  The 
omission  of  a  similiter  is  immaterial.  Id. 


CHAPTER  II. 

EJECTMENT. 

No.  759. 

i.    Answer  Containing  Special  Denials. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies: 

I.  That  the  plaintiff  is  the  owner  of  the  [lots  of  land] 
described  in  the  complaint,  or  an v  part  thereof,  or  was 
ever  seized   or   possessed  of  the  same,  or  any   part 
thereof,  or  entitled  to  the  possession  thereof  at  any  time 
or  at  all. 

II.  Denies  that  the  plaintiff  has  any  estate  therein, 
or  ever  had. 

III.  Denies  that  the  said  plaintiff  has  been  damaged 
by  said  defendant's  withholding  the  said  premises,  or  the 

possession  thereof,  in  the  sum  of dollars,  or  in 

any  other  sum,  or  at  all. 


1.  Denials  Essential. — Unless  the  answer  denies  the  allegations 
of  the  complaint,  they  are  admitted  without  further  proof,  damages 
included.     Patterson  v.  Ely,  19  Cal.  28. 

2.  Insufficient  Answer. — The  complaint  charged  that,  on  a  day 
mentioned,  the  plaintiffs  were  lawfully  seized  and  possessed,  and  had 
the  right  of  possession  of  a  certain  tract  of  land,  and  the  defendants 
afterwards  entered  into  and  upon  the  said  tract,  and  ousted  plaintiffs 
therefrom.     The  answer,  in  response  to  these  allegations,  averred  that 


908  FORMS    OF     ANSWERS. 

the  defendant  was  not  guilty  of  the  supposed  trespasses  and  ejectment 
in  the  complaint  mentioned,  nor  of  any  part  thereof.  Held,  that  the 
answer  raised  no  issue.  (Schenk  v.  Evoy,  24  Cal.  113.)  This  defend- 
ant further  says,  that  he  is  not  in  possession  of  the  lands  and  tenements 
described  in  the  complaint,  or  any  part  thereof.  Held,  that  the  allega- 
tion of  the  complaint  must  be  taken  as  confessed.  Id. 

3.  Insufficient  Denial. — In  an  action  of  ejectment,  where  the 
complaint  alleges  possession  in  the  defendant,  a  denial  in  the  answer  in 
the  following  words  is  not  sufficient  to  put  in  issue  the  question  of  pos- 
session: "Defendant  denies  that  he  has  unlawfully,  wrongfully,  and  in 
violation  of  plaintiff's  rights,  had  possession,"  etc.     This  denial  might 
be  true,  and  yet  the  defendant  be  in  possession.     The  defendant  was 
called  on  to  answer,  not  only  the  character  of  the  possession,  but  the 
fact  of  possession.    (Burke  v.  Table  Mountain  Co.,  12  Cal.  403.)    The 
averments  of  possession  and  ouster,  in  this  case,  were  held  to  be  insuf- 
ficiently denied.     See  statement  of  facts,  Smith  v.  Doe,  15  Cal.  100. 

4.  Literal  and  Conjunctive. — An  allegation,  in  a  verified  com- 
plaint, that  "defendants  wrongfully  and  unlawfully  entered  upon  and  dis- 
possessed" plaintiff,  is  not  sufficiently  denied  by  a  denial  that  defendants 
wrongfully  and  unlawfully  entered  and  dispossessed  plaintiff,  because 
such  denial  admits  entry  and  ouster.    Busenius  v.  Coffee,  14  Cal.  91. 

5.  New  Matter. — When  a  complaint  alleges  that  the  plaintiff 
was  in  the  quiet  and  peaceable  possession  of  premises,  and  was  dispos- 
sessed by  defendants  by  force,  or  under  an  illegal  order  made  by  an 
officer  having  no  jurisdiction,  the  answer  should  take  issue  directly  upon 
the  allegations  of  the  complaint,  or,  confessing  them,  should  state  dis- 
tinctly and  positively  new  matter  sufficient  to  avoid  them.     (Ladd  v. 
Stevenson,  i    Cal.   18.)      The  defendant  is  bound  to  bring  forward 
all  matter  of  a  strictly  defensive  character,  or  be  precluded  from  again 
litigating  the  same;   but  he  is  not  bound  to  set  up  or  litigate  new 
matter  constituting  a  cause  of  action  in  his  favor.     Ayres  v.  Bensley, 
32  Cal.  620. 

6.  Purchase  by  Defendant  in  Ejectment. — If  a  defendant 
in  ejectment,  who  is  in  possession  without  claim  or  color  of  title,  buys 
a  fractional  interest  in  the  demanded  premises  pendente  lite,  this  purchase 
thenceforth  presumptively  divests  his  possession  of  its  hostile  character. 
Carpentier  v.  Small,  35  Cal.  346. 


IN    EJECTMENT.  909 

7.  Right  of  Possession. — The  defendant  cannot  prove  on  the 
trial   of  an   action   of  ejectment,  for   the   purpose   of  showing   that 
plaintiff's  right  of  possession  had  terminated,  that  since  the  action  was 
commenced  plaintiff  has  conveyed  the  land  to  another  person,  unless 
the  fact  of  such  conveyance  has  been  set  up  in  the  original  or  supple- 
mental answer.     (Moss  v.  Shear,  30  Cal.  467.)     If  the  plaintiff  has 
conveyed  the  land  demanded,  pending  ejectment,  the  Court,  by  the  con- 
sent of  both  the  plaintiff  and  the  vendee,  may,  under  the  provisions  of 
the  Practice  Act,  make  an  order  continuing  the  action  in  the  name  of 
the  original  plaintiff.     (Id.}     If  the  plaintiff  in  ejectment  transfers  the 
demanded   premises  pending  the   action,  and  the  Court  orders  the 
action  continued  in  the  name  of  the  original  plaintiff,  he  may  recover 
judgment  for  both  the  possession  and  the  rents  and  profits.    (Id.)    The 
sale  and  transfer  by  the  plaintiff  in  ejectment  of  the  demanded  prem- 
ises pending  the  action,  is  a  transfer  of  the  cause  of  action,  within  the 
meaning  of  the  sixteenth  section  of  the  Practice  Act,  and  the  act'on 
may  be  continued  in  the  name  of  the  original  plaintiff.     Id. 

8.  Stare  Decisis. — Where  important  rights  of  property  had  grown 
up  under  a  decision  of  the  Supreme  Court,  and  many  years  have 
elapsed  since  the  same  was  rendered,  and  its  correctness  has  been 
tacitly  admitted  in  other  cases,  the  question  will  not  be  reopened.    Vas- 
sault  v.  Austin,  36  Cal.  691. 

9.  Sufficient  Denial. — Where,  in  an  action  of  ejectment,  the 
co  nplaint  did  not  directly  aver  a  seizin  or  ownership  of  the  premises 
by  plaintiff,  but  alleged  that  the  plaintiff,  by  location,  survey,  and  certain 
other  acts,  acquired  possession;   and  the  answer  denied  these  acts, 
except   the   survey,  and  denied   that  plaintiff  acquired   possesion  by 
location,  "or  in  any  other  manner:"  Held,  that  the  allegation  of  prior 
possession  was  sufficiently  denied  by  the  answer.     (La  Rue  v.  Oppen- 
heimer,  20  Cal.  517.)     If  the  entry  and   ouster  are  denied   in  the 
answer,  the  withholding  of  possession  at  the  commencement  of  the 
action  is  not  admitted  by  the  pleading,  although  it  is  not  specially 
denied.     Hawkins  v.  Reichert,  28  Cal.  534. 

10.  Tax  Title. — A  tax  title  must  be  specially  set  up.     (Russell  v. 
Mann,  22  Cal.  132.)     And  if  k  accrue  after  action  commenced,  it  must 
be  pteaded  in  a  supplemental  answer.     (McMinn  v.  O'Connor,  27  Cal. 
246;  Moss  v.  Shear,  30  Cal.  468.)     It  is  *bt  enough  to  allege  that  the 
property  was  duty  sold  for  the  non-payment  of  a  tax  duly  imposed 
according  to  the  Statute.     It  is  essential  to  state  facts  showing  that  a  tax 


FORMS    OF    ANSWERS. 

was  duly  imposed,  for  the  non-payment  of  which  the  authorities  might 
lawfully  sell  it,  and  that  the  proof  of  non-payment  required  by  the 
Statute  had  been  made.  (Carter  v.  Koesley,  9  Bosw,  583.)  In  an 
action  to  bar  the  rights  of  a  former  owner  of  lands  sold  and  deeded  for 
non-payment  of  taxes,  an  answer  which  merely  denies  the  validity  of 
the  taxes,  or  that  anything  was  due  thereon  for  taxes  at  the  time  of  the 
sale,  and  denies  the  title  of  the  plaintiff,  is  not  sufficient.  It  should 
allege  facts  showing  specifically  the  grounds  relied  on  to  avoid  the  tax 
deed.  (Wakeley  v.  Nicholas,  16  Wis.  588.)  Whenever  a  tax  title  is 
specially  set  forth  in  a  pleading,  it  is  necessary  that  every  fact  should  be 
averred  which  is  requisite  to  show  that  each  of  the  statutory  provisions 
have  been  complied  with.  This  necessity  is  not  obviated  by  the  pro- 
visions making  the  tax  deed  proof  of  certain  facts.  (Russell  v.  Mann, 
22  Cal.  131.)  In  pleading  a  tax  title,  it  is  necessary  to  aver  those  facts 
which,  by  Sections  1 8  and  22  of  the  Revenue  Act  of  1 857,  are  required  to 
be  stated  in  the  tax  deed.  (Id.)  A  pleading,  setting  up  a  tax  title, 
must  aver  distinctly  for  what  year  the  tax  was  assessed,  and,  failing  to 
do  so,  is  demurrable.  Id. 

11.  Title  in  Defendant. — Title  in  the  defendant  need  not  be 
pleaded,  and  may  be  given  under  a  denial  of  plaintiff's  title,  and  if 
pleaded  (Marshall  v.  Shafter,   32   Cal.   176)  such  an  allegation  does 
not  constitute  new  matter,  and  is  only  equivalent  to  a  general  denial  of 
title  in  the  plaintiff.     (Id.)     An  answer  in  an  action  of  ejectment,  where 
both  parties  claim  under  a  common  grantor,  which  sets  up  as  a  defense 
a  legal  title  in  defendant,  and  also  a  verbal  contract  made  by  plaintiff's 
grantor  to  convey,  and  an  entry  under,  and  a  subsequent  purchase  by 
plaintiff,  with   notice,  contains   both  a   legal   and   equitable  defense. 
(Bodley  v.  Ferguson,  30  Cal.  511.)    A  plea  which  sets  up  no  title  in 
the  defendant,  but  alleges  certain  evidence  or  sources  of  title  which  it 
avers  the  plaintiff  relies  on,  and  states  facts  to  show  such  title  is  invalid, 
is  bad.     (Christy  v.  Scott,  14  How.  U.S.  282.)     Where  the  defendant 
in  ejectment  set  up  title  derived  under  a  written  instrument,  claiming  to 
be  a  conveyance,  but  lacking  all  the  requisites,  such  a  defense  was  insuf- 
ficient against  a  party   holding  a  subsequent  deed  against  the  same 
grantor.     Hayes  v.  Bond,  7  Cal.  153. 

12.  Title  in  Third  Person. — A  defendant  in  ejectment,  enter- 
ing under  a  deed  executed  by  order  of  a  court  of  competent  jurisdic- 
tion,  enters  under  color  of  title.     He  is  not  a  naked  trespasser,  and 
may  set  out  an  outstanding  title  in  a  third  person.     Gregory  v.  Haynes, 
13  Cal.  591. 


IN    EJECTMENT.  9 1  I 

13.  Title  to  Part. — An  answer  in  ejectment,  setting  up  title  to 
only  a  portion  of  the  demanded  premises,  must  particularly  describe 
the  part  to  which  title  is  claimed.     (Anderson  v.  Fisk,  36  Cal.  625.) 
An  answer  in  ejectment,  setting  up  title  in  the  defendant  to  the  de- 
manded premises,  and  possession  in  him,  should  aver  that  such  posses- 
sion and  title  were  adverse  to  the  plaintiff's  claim  of  title.     Anderson 
v.  Fisk,  36  Cal.  625. 

14.  Title  Terminated. — Under  our  Practice  Act,  if  it  appear 
that  the  plaintiff  in  ejectment  had  a  right  to  recover  at  the  commence- 
ment of  the  suit,  but  that  his  right  has  terminated  during  its  pendency, 
he  cannot  recover  the  possession,  but  only  his  damages.     Moore  v.  Tice, 
22.  Cal.  513. 

No.  760. 

ii.   Dental  of  Title. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff,  at  the  commencement  of  this  ac- 
tion, was  not  the  owner  of  the  premises  alleged  [nor 
entitled  to  possession  thereof]. 

15.  Form. — This  form  is  only  appropriate  where  the  averment  of 
title  in  the  complaint  is  in  general  terms,  without  stating  the  sources  of 
title. 

No.  761. 

iii.  Answer  Containing  Several  Defenses. 
[TITLE.] 
The  defendant  answers  to  the  complaint: 

First — For  a  first  defense: 

I.  That  the  grant  of  A.  B.  to  the  plaintiff,  referred  to 
in  the  complaint,  was  delivered  at  a  time  when  the  land 


912  FORMS    OF    ANSWERS. 

mentioned  therein  was  in  the  actual  possession  of  the 
defendant,  claiming  under  a  title  adverse  to  that  of  said 
A.  B. 

Second — For  a  second  defense: 

I.  That  on  the  ....  day  of ,  1 8 .  . ,  the  said 

A.  B.   executed  to  the  defendant  a  deed,  whereby  he 
granted  to  him  a  piece  of  land  \_describe  as  in  deed~\. 

II.  That  by  a  mutual  mistake  of  the  parties  thereto, 
the  said  deed  did  not  include  the  land  mentioned  in  the 
complaint;  but  it  was  their  intention  that  it  should,  and 
they,  at  the  time  of  its  execution,  believed  that  it  did 
include  the  same,  and  the  defendant,  in  such  belief,  paid 
to  the  said  A.  B.  the  price  thereof. 

III.  That  this  action  is  brought  by  the  plaintiff,  to 
recover  lands  omitted  from  said  deed  by  said  mistake. 

Wherefore  defendant  demands  that  the  plaintiff  be 
adjudged  to  execute  to  the  defendant  a  deed  of  convey- 
ance correcting  said  mistake,  and  conveying  to  the  de- 
fendant said  premises,  in  said  agreement;  and  that  the 
plaintiff  be  perpetually  enjoined  from  the  prosecution  of 
this  action. 


16.  Abandonment. — An  abandonment  takes  place  only  when 
one  in  possession  leaves  with  the  intention  of  not  again  resuming  pos- 
session.    Abandonment  is,  therefore,  a  question  of  intention;  (Moore 
v.  Rollins,  36  Cal.  333;)  and  should  be  specially  pleaded,  and  the  facts 
stated  on  which  the  defendant  relies.     (St.  John  v.  Kidd,  26  Cal.  266; 
Root  v.  Ball,  4  McLean,  177.)    That  it  need  not  be  specially  pleaded, 
see  Bell  v.  Brown,  22  Cal.  671;  Wilson  v.  Cleveland,  30  Id.  192;  con- 
sult Moore  v.  Rollins,  36  Cal.  333;  McFadden  v.  Wallace,  Cal.  Sup. 
Ct.,Jul.  T.,  1869. 

17.  Abandonment,  when  not  Pleaded. — In  an  action  of  eject- 


IN    EJECTMENT.  913 

ment,  one  of  the  material  allegations  of  the  complaint  is,  that  the 
plaintiff  was  the  owner  and  entitled  to  the  possession  at  the  time  of  the 
alleged  entry  by  defendant,  and  under  a  direct  denial  of  this  averment 
the  defendant  may  show  that,  previous  to  his  entry,  a  title  which  once 
existed  in  the  plaintiff  had  been  lost  by  abandonment  or  forfeiture. 
(Bell  v.  Brown,  22  Cal.  671.)  A  right  to  recover,  founded  upon  naked 
possession,  the  defendant,  under  the  general  issue,  without  pleading 
abandonment,  may  prove  abandonment  by  the  plaintiff  before  the  de- 
fendant's entry.  (Wilson  v.  Cleaveland,  30  Cal.  192.)  Evidence  of 
the  abandonment  of  a  mining  claim  by  a  party  suing  to  recover  the 
same,  is  admissible  without  a  special  plea  thereof,  under  a  denial  of  title 
in  the  plaintiff,  pleaded  by  the  defendant.  (Bell  v.  Bedrock  T.  and  M. 
Co.,  36  Cal.  214.)  Mere  lapse  of  time  does  not  constitute  an  aban- 
donment, but  it  may  be  given  in  evidence  for  the  purpose  of  ascertain- 
ing the  intention  of  the  parties.  Moore  v.  Rollins,  36  Cal.  333. 

18.  Abatement — Another  Action  Pending. — In  an  action  to 
recover- land,  an  answer  of  another  action  pending  for  the  same  cause 
must  show  that  the  same  title,  the  same  injury,  and  the  same  subject 
matter  are  in  controversy  in  both  actions.     (Larco   v.  Clements,  36 
Cal.  132.)     Answers  in  abatement  of  an  action  are  to  be  strictly  con- 
strued.    Larco  v.  Clements,  36  Cal.  131. 

19.  Abatement  by  Death. — So,   the  death  of  the  wife,  after 
a  suit  by  herself  and  husband  for  the  homestead,  defeats  a  recovery  by 
the  husband,  though  the  right  to  recover  existed  at  the  commencement 
of  the  suit.     (Gee  v.  Moore,  14  Cal.  472.)     No  abatement  takes  place 
in  ejectment,  except  in  case  of  sole  defendant.     (Adams  on  Ej.  298;  2 
Tida.  846;  Putnam  v.  Van  Buren,  7  How.  Pr.  31;  James  v.  Bennett, 
10  Wend.  540;  Hatfield  v.  Bushnell,  i  Blotch.  393.)     On  death  of  lessor. 
(Frier  2.  Jackson,  8  Johns.  495.)     Of  defendant.    (Diefendorf  v.  House, 
9  Hoiv.  Pr.  243;  8  .#*«£•.  28;  18  Wend.  543;  14  Id.  245;  4  Cow.  423; 
2  Saund.  72;  4  Ad.  &  E.  1,002.)     In  real  action,  the  death  of  either 
party  before  judgment  abates  the  suit.     Mackie  v.  Thomas,  7  Wheat. 
530;  Green  v.  Watkins,  6  Id.  260;  Dyckman  v.  Allen,  2  How.  Pr.  17. 

20.  Abatement  by  Transfer  of  Property. — In  New  York, 

the  transfer  of  all  the  interest  of  a  sole  defendant,  abates  the  action. 
A  new  action  may  be  maintained  against  the  transferee.  (Mosely  v.  Al- 
bany N.  R.R.  Co.,  14  How.  Pr.  71;  Mosely  v.  Mosely,  n  Abb.  Pr. 
105;  Waldross  v.  Borble,  4  How  Pr.  358;  Lowry  v.  Morrison,  n 
Paige,  327.)  In  California,  if  the  fact  appears  on  the  record,  that  after 

58 


FORMS    OF    ANSWERS. 

the  institution  of  the  suit  the  plaintiff  conveyed  a  portion  of  the  land  in 
controversy  to  other  persons,  it  would  be  no  ground  for  reversing  the 
judgment.  (Barstow  v.  Newmen,  34  Cal.  90;  Moss  v.  Shear,  30  Cal. 
468.)  The  conveyance  of  the  entire  interest  in  the  land  by  the 
plaintiff  will  necessarily  defeat  the  action.  (Barstow  v.  Newman, 
34  Cal.  190.)  The  Court  may  in  ejectment,  by  consent  of  both 
plaintiff  and  vendee,  make  an  order  continuing  in  the  name  of  the 
original  plaintiff.  (Moss  v.  Shear,  30  Cal.  468.)  Such  a  sale  is  a  trans- 
fer of  the  cause  of  action.  (Id.}  Or  such  purchaser  may  intervene. 
(Brooks  v.  Hager,  5  Cal.  281.)  Where  the  defendant  assigns  his  in- 
terest in  the  property,  in  an  action  of  ejectment,  the  assignee  cannot 
be  substituted  as  a  party  to  the  action,  which  may  be  continued  in  the 
name  of  the  original  plaintiff.  Moss  v.  Shear,  30  Cal.  468;  Mosely  v. 
Albany  N.  R.R.  Co.,  14  How.  Pr.ji. 

21.  Mexican  Grant. — If  the  plaintiff  relies  on  a  title  derived 
from  the  Mexican  Government  and  confirmed  by  the  United  States, 
without  stating  the  time  of  confirmation,  an  answer  which  sets  "up  as  a 
defense  the  Statute  of  Limitations  is  good,  without  stating  that  the  Mexi- 
can grant  was  finally  confirmed  within  less  than  five  years  next  before 
the  commencement  of  the  action.     Anderson  v.  Fisk,  36  Cal.  625. 

22.  Insufficient  Plea. — Defendant  set  up  as  a  defense  "that  the 
title  of  the  said  plaintiff,  if  any  he  has  to  said  premises,  did  not  accrue 
within  five  years  prior  to  the  commencement  of  this  suit,  and  that  he 
has  not  been  in  possession  thereof  within  'five  years  prior  to  this  suit." 
Held,  not  to  be  a  plea  of  the  Statute  of  Limitations.     (McKay  v.  Peta- 
luma  Lodge,  Reyburn  et  als.,  Cal.  Sup.  Ct.,  Apl.  7\,  1866.)     An  answer 
which  avers  that  ' '  if  plaintiffs  ever  had  any  right  or  title  to  their  claims, 
or  to  any  portion  thereof,  they  are  barred  by  the  Statute  of  Limitations, 
as  they,  the  defendants,  having  been  in  quiet  and  peaceable  possession 
of  the  same,  adversely  to  these  plaintiffs,  for  a  period  over  five  years," 
is  not  a  good  plea  to  the  Statute  of  Limitations.     Table  Mountain  Tun- 
nel Co.  v.  Stranahan,  31   Cal.  387;  see,  also,  Boyd  v.  Blankman,  29 
Cal.  20. 

23.  Must  be  Specially  Pleaded. — The  defense  of  five  years' 
adverse  enjoyment  of  an  easement  must  be  pleaded  in  order  that  it 
may  be  available.     American  Co.  v.  Bradford,  27  Cal.  360. 

24.  Conjunctive  Denial. — An  averment  in  a  complaint  that  the 
defendant,  since   November,    1858,    "has   continued   to   possess  and 


IN    EJECTMENT.  915 

occupy  said  land  and  premises,  and  use  the  same  in  her  said  sole  trader 
business,"  is  not  denied  by  a  denial  in  the  answer  that  defendant  has 
continued  since  the  gih  day  of  November,  1858/10  occupy  or  use  the 
said  premises  in  her  business  as  such  sole  trader.  Camden  v.  Mul- 
len, 29  Cal.  564. 

25.  Counter  Averments. — If  the  complaint  contains  averments 
of  the  facts  constituting  a  deraignment  of  title  in  a  certain  manner,  and 
the  answer  contains  a  counter  averment  that  the  title  was  derived  in  a 
different  manner,  this  counter  averment  is  a  denial,  if  it  is  alleged  that 
the  facts  are  not  otherwise  than  averred  in  the  counter  statement.    Siter 
v,  Jewett,  33  Cal.  92. 

26.  Disclaimers. — An  answer  which  disclaims  all  interest  in  the 
land  in  dispute,  except  such  as  the  defendant  may  have  under  the  home- 
stead law,  is  not  a  disclaimer.     (De  Uprey  v.  De  Uprey,  27  Cal.  331; 
14  Cal.  576.)     Where  defendants  disclaim  as  to  apart  of  the  premises, 
and  as  to  another  part  plead  that  plaintiff  was  not  in  possession  at  the 
time  of  the  commencement  of  the  action,  it  is  not  error  to  render 
judgment  against  them  for  costs.    (Brooks  v.  Calderwood,  34  Cal.  563.) 
Where  the  plaintiff  succeeds  in  part,  and  fails  in  part,  costs  may  be 
awarded,  at  least  upon  the  part  on  which  he  succeeded.     (Brooks  v. 
Calderwood,  34  Cal.  563.)     And  defendant  cannot  take  advantage  of 
the  statutory  provision  relating  to  disclaimers,  unless  they  have  raised 
the  issue  on  plaintiff's  possession.     (Id.)     One  who  held  possession  in 
subordination  to  and  in  privity  with  the  title  of  the  rightful  owner,  is 
not  precluded  from  imparting  by  his  own  acts  an  adverse  character  to 
his  possession.    Nor  is  it  necessary  to  first  surrender  the  premises.    The 
trustee  may  disavow  and  disclaim  his  trust;  the  tenant,  the  title  of  his 
landlord  after  expiration  of  lease,  or  even  before,  by  forfeiture  of  lease 
disclaiming  the  tenure,  and  attorning  to  another.    (7  Wheat.  535;  Cowp. 
517;  4  S.  &  R.  570;  Williston  v.  Watkins,  3  Pet.  47;  Waldenz>.  Bod- 
ley,  14  Id.  156;  Reed  v.  Proprietor  of  locks  and  canals,  8  How.  U.S. 
274.)    So,  the  vendee,  the  title  of  his  vendor  after  breach  of  his  contract 
and  the  Statute,  will  commence  to  run  at  the  time  of  such  disclaimer. 
(2  Bos.  fe3.  P.  542;    5  Barn.  <5f  Aid.  232;    Cowp.  217;  2  Stark.  Ev. 
887;  7  Johns.  Ch.  90;  20  Johns.  565;  4  Serg.&  R.  310;  7  Wheat.  548; 
3  Pet.   52;    C.  &  #.,  pt.   i,  n.    37,  311;     2    Sch.  &  Lefr.   633;    2 
Jac.  &  W.  1,191;  Zeller  v.  Eckert,  4  How.  U.S.  289.)      But  a  clear, 
positive,  and  continued  disclaimer  is   necessary.     Zeller  v.  Eckert,  4 
Haw.  U.S.  289. 


9l6  FORMS    OF    ANSWERS. 

26.  Forfeiture,  Plea  of. — In  an  action  of  ejectment  to  recover 
mining  claims,  an  answer  to  the  complaint  which  avers  that  any  right 
that  plaintiffs  may  have  ever  had  to  the  possession,  etc.,  they  forfeited 
by  a  non-compliance  with  the  rules,  customs,  and  regulations  of  the 
miners  of  the  diggings,  embracing  the  claims  in  dispute,  prior  to  the 
defendant's  entry,  is  insufficient,  in  not  setting  forth  the  rules,  customs, 
etc.     (Dutch  Flat  Co.  v.  Mooney,  12  Cal.  534.)    The  facts  should  be 
rated  so  as  to  enable  the  Court  to  determine  whether  the  forfeiture  did 
accrue.     The  averment  of  forfeiture  is  a  legal  conclusion,  upon  which 
no  issue  can  be  taken.     Id. 

27.  Former  Recovery. — A  plea  of  former  recovery  in  eject- 
ment, as  to  a  part  of  the  demanded  premises,  should  describe  the  land 
which  was  in  contest  in  the  former  action,  and  such  plea  is  bad,  if  it  is 
pleaded  as  a  general  defense  to  the  whole  action,  and  there  are  several 
plaintiffs,  and  the  former  recovery  was  against  one  only  of  the  several. 
(Anderson  v.  Fisk,  36  Cal.  625.)     In  an  action  of  ejectment  to  recover 
the  possession  of  land,  where  the  defendant  simply  denied  the  allegation 
of  the  complaint:  Held,  that  he  could  not  introduce  in  evidence  a  copy 
of  the  record  of  a  former  recovery.     Piercy  v.  Sabin,  10  Cal.  22. 

28.  Fact  of  Possession. — Where  a  complaint  for  the  possession 
tof  land  avers  defendants  to  be  in  possession,  and  the  answer  does  not 
•deny,  but  affirmatively  shows  it,  then,  even  if  the  allegation  of  possession 
be  not  material,  and  therefore  not  requiring  a  denial,  the  fact  of  posses- 
sion becomes  a  matter  of  admission  or  agreement  between  the  parties, 
as  an  independent  fact  not  in  issue  by  the  pleadings,  but  affecting  the 
whole  case.     Powell  v.  Oullahan,  14  Cal.  114. 

29.  General  Issue. — If  the  defendant  in  ejectment  pleads  the 
general  issue  only,  the  plaintiff  is  entitled  to  recover,  in  case  the  defend- 
ant is  found  in  possession  of  any  part  of  the  demanded  premises. 
(Greer  -v.  Mezes,  24  How.  U.S.  268.)     The  general  issue  plea  is  not 
guilty,  and  under  it,  coverture,  or  any  other  available  defense  may  be 
taken.     (Black  v.  Tricker,  52  Penn.  436.)     In  an  action  of  ejectment, 
under  the  general  issue,  the  question  at  issue  is  not  whether  the  ances- 
tor once  had  title,  and  the  right  of  possession,  but  whether  the  plaintiffs, 
at  the  .commencement  of  the  action,  had  such  title  and  right.      Under 
the  general  ;issue,  or  a  general  denial  of  all  the  allegations  of  the  com- 
plaint, -the  defendant  may  controvert  by  evidence  any  and  every  fact 

>.which  the  plaintiff  is  bound  to  establish  to  make  out  his  cause  of  action. 


IN    EJECTMENT.  917 

(16  Barb.  633.)  He  cannot,  under  such  an  answer,  prove  a  discharge 
of  a  cause  of  action  once  existing  in  the  plaintiff  against  him,  because 
that  is  an  affirmative  defense,  or  new  matter,  which  must  be  pleaded. 
But  he  may  show  that  the  plaintiff  never  had  any  such  cause  of  action 
against  him  as  is  alleged  in  the  complaint.  (Raynor  v.  Timerson,  46 
Barb.  518.)  Matter  that  goes  to  affect  the  title  may  be  proved  under 
the  general  denial.  (McCormic  v.  Leggett,  8  Jones  L.  (N.C.)  425.)  So, 
abandonment  of  land  may  be  proved.  (Wilson  v.  Cleveland,  30  Cal. 
192;  Bell  v.  Brown,  22  Id.  671.)  A  general  denial,  in  an  action  of 
ejectment,  brings  in  issue  the  respective  titles  of  plaintiff  and  defendant. 
Marshall  v.  Shafter,  32  Cal.  176. 

30.  Grant  of  Easement. — Grant  of  easement  or  servitude  must 
be  specially  pleaded.     (American  Co.  v.  Bradford,  27  Cal.  368.)     The 
lessee  of  an  inner  close  has,  by  necessity,  a  right  of  way  over  an  outer 
close  which  belongs  to  his  lessor,  but  he  cannot  by  user  acquire  an  ease- 
ment to  deposit   packages  on  a  close  which  belongs   to  his   lessor. 
Gayford  v.  Moffatt,  Law.  Rep.  4  Ch.  133. 

31.  Homestead. — The  husband  or  the  wife  may  set  up  the  fact  of 
homestead,  as  a  defense  to  ejectment,  based  upon  a  sheriff's  deed  of 
the  premises,  made  in  pursuance  of  an  execution-sale  on  a  judgmental 
law  against  the  husband,  there  having  been  no  abandonment  of  the 
homestead.     (Williams  v.  Young,  17  Cal.  403.)     A  defendant  in  pos- 
session may  show  that  he  has  entered  the  land  under  the  Homestead 
Law  of  the  United  States,  and  is  not  estopped,  by  a  sale  and  delivery  of 
possession  to  him  by  the  plaintiff,  from  showing  that  he  now  holds  them 
under  said  laws.     (Holden  v.  Andrews,  Cal.   Sup.  Ct.,  Jul.  T.,  1869.) 
He  does  not  thereby  deny  the  title  of  the  vendor,  but  he  confesses  and 
avoids  it.     He  may  show  that  the  vendor's  title  has  expired,  for  by  the 
estoppel  he  is  precluded  from  denying  only  what  he  has  previously  ad- 
mitted, and  by  executing  the    contract,  and    entering    under    it,  he 
admitted  the  existence,  but  not  the  continuance  of  title  in  the  vendor. 
(Jackson  v.  Rowland,  6    Wend.  670;    Dispard  v.  Wallbridge,  15  N. Y. 
374;  Holden  v.  Andrews,  Cal.  Sup.  C/.,  Jul.  T.,  1869.)     And,  as  the 
right  to  possession  depends  npon  title,  when  the  vendor's  title  expires, 
his  right  to  possession  expires. 

32.  Misjoinder. — Where  two  are  joined  as  plaintiffs  in  an  action 
for  the  recovery  of  possession  of  land,  a  denial  in  the  answer  that  the 
plaintiffs  were  in  possession  of  the  land  does  not  present  the  issue  of 


91 8  FORMS    OF     ANSWERS. 

a   misjoinder   of    either    of    the    plaintiffs.     Gillman  v.  Sigman,   29 
Cat.  637. 

33.  New  Matter. — Subsequently  acquired  title  in  defendant 
must  be  specially  set  up.  (Moss  v.  Shear,  30  Cal.  468.)  Title  ac- 
quired by  defendants  pendenie  lite,  and  other  matters  of  defense  arising 
subsequent  to  the  commencement  of  the  suit,  must  be  set  up  by  a 
supplemental  answer  in  the  nature  of  a  plea  puis  darrein  continuance. 
(Moss  v.  Shear,  30  Cal.  468;  Hardy  v.  Johnson,  i  Wall  U.S.  371.) 
So,  also,  a  transfer  of  title  by  plaintiff  must  be  by  supplemental  answer, 
or  it  cannot  be  given  in  evidence.  (Moss  v.  Shear,  30  Cal.  468.)  The 
interest  of  a  mortgagor  in  possession  was  sold  on  execution,  and  eject- 
ment was  brought  against  him  by  the  purchaser,  field,  that  the  mortgagor 
could  defend  his  possession  by  taking  a  lease  from  the  mortgagees, 
and  setting  it  up  by  a  plea  puis  darrein  continuance.  Simmons  v. 
Brown,  7  Rhode  Island,  427. 

34.  Non-Tenure. — In  most  actions  non-tenure  is,  in  Massachu- 
setts, a  good   plea  either  in   bar  or  abatement,  though  in  some  States 
and  in  England  it  is  good  only  in  abatement.     (Fiedler  v.  Carpenter, 
2  Woodb.  &  M.  211.)     A  mortgagor  in  possession  cannot,  in  a  suit 
against  him  by  his  mortgagee,  to  recover  possession  of  the  mortgaged 
premises,  plead  special  non-tenure.     Marsh  v.  Smith,  18  N.H.  366. 

35.  Several  Defenses. — In  an  action  to  recover  a  mining  claim, 
the  complaint,  duly  verified,  alleged  title  and  possession  in  plaintiffs  on 
a  certain  day.     The  answer,  also  verified,  denied   that   plaintiffs  ever 
had  either  title  or  possession,  and  afterwards  averred  that  if  plaintiffs 
ever  had  a  title  to  the  claim  they  had  abandoned  and  forfeited  it  before 
defendants'   entry.     At   the  trial,   on  motion  of  plaintiffs,  the  Court 
ordered  defendants  to  elect  on  which  of  the  above  defenses  they  would 
rely,  and  defendants  having,  after  excepting  to  the  order,  elected  to 
rely  upon  their  denial,  were  precluded  from  introducing  proof  of  the 
abandonment  and  forfeiture.     Held,  that  the  action  of  the  Court  was 
error;  that  defendants  had  the  right  to  set  up  both  defenses  in  their 
answers,  and  support  both  by  proof.     (Bell  v.  Brown,   22    Cal.  671.) 
The  defendant  may  deny  the  title  of  the  plaintiff,  and  also  plead  the 
Statute  of  Limitations.     (Wilson  v.  Cleaveland,  30   Cal.  192.)     If  in 
ejectment  there  are  several  defenses  set  up  in  the  answer,  some  of 
which  are  insufficiently  pleaded,  and  the  defendants  have  a  general 


IN    EJECTMENT.  919 

verdict,  and  the  record  does  not  disclose  on  which  one  of  the  defenses 
the  verdict  was  rendered,  the  judgment  will  be  reversed.  Anderson 
v.  Fisk,  36  Cal.  625. 


No.  762. 

iv.     By  one  of  Several  Tenants  Charged  as  Joint  Tenant. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  defendants  A.  B.  and  C.  D.,  at  the  times 
mentioned  in  the  complaint,  and  ever  since,  have  held 
and  occupied  segregated  portions  of  the  premises  sep- 
arately, and  not  jointly,  to  wit:  the  defendant  A.  B. 
the  part  [stating  whaf\,  and  the  defendant  C.  D.  the 
part  [stating-  whaf\. 


36.  Form. — For  a  form  of  defense,  see  Fosgate  v.  Herkimer 
Manufacturing  and  Hydraulic  Co.,  12  N.Y.  580;  12  Barb.  352. 

37.  Improvements — Set-Off! — Where  damages  are  claimed  for 
withholding  the  property  recovered,  upon  which  permanent  improve- 
ments have  been  made  by  a  defendant,  the  value  of  such  improve- 
ments may  be  pleaded  as  a  set-off  to  the  damages  for  withholding  the 
property.     (Cal.  Pr.  Act,  §  257;  Yount  v.  Howell,  14  Cal.  464;  Ford 
v.  Holton,   5  Id.  319;  Welch  v.  Sullivan,  8  Id.  165.)     But  where  no 
proof  is  introduced  to  show  damages,  it  is  no  error  to  refuse  to  allow 
the  defendant  to  prove  the  value  of  the  improvements  made  by  him  on 
the  property.     (Ford  v.  Holton,  5  Cal.  319.)     A  defendant  in  eject- 
ment, who  has  made  permanent  improvements  on  the  land  in  contro- 
versy, is  not  entitled  to  set  off  the  value  of  those  improvements  against 
the  damages  claimed  by  the  plaintiff,  unless  the  improvements  have 
been  made  by  him  or  those  under  whom  he  claims,  while  holding 
possession  under  color  of  title,  adversely  to  the  claims  of  plaintiff,  and 
in  good  faith.     (Love  v.  Shartzer,  31  Cal.  488;  Carpentier  v.  Small,  35 
Cal.  346;  see  Bay  v.  Pope,  18  Cal.  694.)    Where  one  who  entered 
as  a  naked  trespasser,  places  improvements  on  the  land,  and  afterwards 


92O  FORMS   OF    ANSWERS. 

buys  an  undivided  interest,  in  an  action  against  him  to  recover  posses- 
sion of  the  land,  by  a  tenant  in  common,  who  owned  prior  to  the  wrong- 
ful entry,  the  defendant  cannot  set  off  the  value  of  his  improvements 
against  the  damages.  (Carpentier  v.  Mitchell,  29  Cat.  330.)  But  not 
where  improvements  were  made  after  plaintiffs  title  accrued,  or  where 
the  holding  of  the  defendant  is  not  adverse  within  that  section.  (Bay 
v.  Pope,  1 8  Cal.  694;  Love  v.  Shartzer,  31  Col.  487.)  Nor  where  de- 
fendant entered  under  a  bond  for  a  deed  from  the  plaintiff.  (Kilburn 
•v.  Ritchie,  2  Cal.  145.)  Value  of  improvements  must  be  specially 
claimed  by  defendant.  Carpentier  v.  Gardner,  29  Cal.  160. 

33.  Improvements — Landlord  and  Tenant. — In  Missouri, 
a  tenant  who  disclaims  the  title  of  his  landlord,  cannot,  if  defeated, 
have  improvements.  (McQueen  v.  Chouteau,  20  Mo.  222.)  The  fact 
that  the  defendant  has  made  permanent  and  valuable  improvements,  in 
good  faith  and  under  color  of  title,  is  no  defense  to  the  action;  but  if 
such  fact  is  set  up  in  the  answer,  in  such  language  as  to  contain  the 
essential  facts  to  justify  a  set  off  of  the  value  of  improvements  against 
rents,  it  will  be  treated  as  a  good  answer  for  that  purpose,  although  no 
offer  is  made  of  such  set  off.  Anderson  v.  Fisk,  36  Cal.  625. 

39.  Joint  and  Several  Tenancy. — In  a  writ  of  right,  where 
the  demandant  describes  the  land  by  metes  and  bounds,  and  counts 
against  the  tenants  jointly,  the  tenants,  by  pleading  in  bar,  admit  their 
joint  seizin,  and  lose  the  opportunity  of  pleading  a  several  tenancy. 
Liter  v.  Green,  2  Wheat.  306. 

40.  Oregon  Rule. — By  the  Civil  Practice  Act  of  the  State  of 
Oregon,  Section  315,  the  defendant  is  prohibited  from  giving  in  evi- 
dence "any  estate  in  himself  or  another  in  the  property,  or  any  license 
or  right  to  the  possession  thereof,  unless  the  same  be  pleaded  in  his 
answer."     By  Section  314,  a  defendant,  in  actual  possession,  may  for 
answer  plead  that  he  is  in  possession  only  as  tenant  of  another,  and 
thereupon  the  landlord,  if  he  apply,  may  defend. 

41.  Separate  Answer. — Defendants  may  answer  separately,  or 
demand  separate  verdicts.      (Winans  v.  Christy,  4  Cal.  70.)      Where 
there  are  several  defendants,  to  entitle  them  to  separate  verdicts  they 
should  set  forth  with  specific  description  the  parcels  which  they  severally 
occupy  or  claim.  (Patterson  v.  Ely,  19  Cal.  28;  McGarvey  v.  Little,  15  Id. 
31.)     If  the  defendant  in  ejectment  desires  to  defend  for  only  a  portion 
of  the  premises,  and  to  limit  his  liability  for  mesne  profits  in  a  corres- 


IN   EJECTMENT.  921 

ponding  proportion,  he  must  frame  his  answer  accordingly,  and  specify 
the  portion  of  the  premises  for  which  it  is  intended  to  defend,  and  dis- 
claim as  to  the  balance.  Guy  v.  Hanly,  21  Cal.  397. 

42.  Set-off?  how  Pleaded. — In  ejectment,  the  fact  that  the  de- 
fendant has  made  permanent  and  valuable  improvements,  in  good  faith, 
and  under  color  of  title,  is  no  defense  to  the  action ;  but  if  such  fact  is 
set  up  in  the  answer,  in  such  language  as  to  contain  the  essential  facts 
to  justify  a  set-off  of  the  value  of  improvements  against  rents,  it  will  be 
treated  as  a  good  answer  for  that  purpose,  although  no  offer  is  made  of 
such  set  off.     (Anderson  v.  Fisk,  36  Cal.  625.)     The  right  of  a  defend- 
ant in  ejectment,  to  set  off  the  value  of  improvements  made  by  him 
against  the  claim  of  the  plaintiff  for  damages,  depends  upon  whether 
they  were  made  by  him,  or  his  grantors  holding  under  color  of  title 
adverse  to  plaintiff,  in  good  faith  and  upon  whether  they  are  permanent 
or  not.     (Carpentier  v.  Small,  35  Cal.  346.)     An  answer  in  ejectment 
which  seeks  to  set  off  the  value  of  improvements  against  damages, 
should  aver  that  they  were  made  with  holding  under  color   of  title 
adverse  to  plaintiff,  in  good  faith,  and  that  they  are  permanent.     (Car- 
pentier v.  Small,  35  Cal.  346.)     A  defendant  in  ejectment,  who  desires 
to  set  off  the  value  of  his  improvements  against  the  mesne  profits,  must 
assert  his  right  by  proper  averments  in  his  answer,  or  he  is  precluded 
from  doing  so  at  the  trial.     Moss  v.  Shear,  25  Cal.  44. 

43.  Several  Answer. — In  an  action  to  recover  the  possession 
of  lands  from  several  defendants,  a  defendant  who  does  not  set  up  in 
his  answer  that  his  occupation  and  possession  were  exclusive  and  in 
severally,  and  that  the  other  defendant  was  in  the  exclusive  occupation 
and  possession  of  the  remaining  portion,  thereby  waives  the  objection 
that  the  plaintiff  could  not  maintain  the  action  against  him  and  the 
other  defendant  jointly;  and  the  plaintiff  is  not  bound  to  elect  at  the 
trial  against  which  of  the  defendants  he  will  proceed.      2  Kern.  580; 
Dillaye  v.  Wilson,  43  Barb.  261.  • 


922  FORMS    OF    ANSWERS. 

No.  763. 

v.     Estoppel. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  plaintiff  ought  not  to  be  admitted  to  allege 
\here  state  the  matter  to  which  the  estoppel  is  inter- 
posed— e.g.\  that  the  said  premises  belonged  to  C.D., 
because  he  alleged  \_here  state  the  subject-matter  of 
the  estoppel — e.g>~\,  that  the  plaintiff,  on  or  about  the 

....  day   of ,  1 8 .  . ,   conveyed  said  premises 

to  the  defendant  by  deed,  containing  a  full  covenant  of 
warranty.     \State  facts  as  they  exist^\ 


44.  Doctrine  of  Estoppel. — The  doctrine  of  estoppel,  which 
may  be  said  to  be  founded  upon  the  adage  that  "  the  truth  is  not  to  be 
spoken  at  all  times/'  is  a  harsh  one,  and  is  never  to  be  applied  except 
where  to  allow  the  truth  to  be  told  would  consummate  a  wrong  to  the 
one  party,  or  enable  the  other  to  secure  an  unfair  advantage.     (Frank- 
lin v.  Merida,  35  Cal.  558.)     A  person  who  has  acquired  the  posses- 
sion of  lands  under  a  contract  of  purchase,  is  precluded  while  he  con- 
tinues in  possession  from  disputing  the  title  of  his  vendor;  but  he  is  not 
estopped  from  showing  that  his  vendor's  title  has  expired.     (Holden  v. 
Andrews,   Cal.  Sup.  O.,  Jul.   T.,    1869.)     And  if,  instead  of  a  third 
person,  the  defendant  has  acquired  the  plaintiff's  title,  he  is  entitled  to 
occupy  the  position  that  would  have  been  held  by  the  third  person 
had  the  title  vested  in  him.     Id. 

45.  Estoppels    in   Pais. — It  was  the  old  rule  that  only   spe- 
cialty or  record  could  be  pleaded  by  way  of  estoppel.    (Davis  v.  Tyler, 
1 8  Johns.  49o;.Welland  Canal   Co.  v.  Hathaway,  8  Wend.  480.     But 
later  cases  sanction  the  idea  that  estoppels  in  pais  may  also  be  thus 
pleaded.     (Gaylord  v.  Van  Loan,   5  Wend.  308;  People  v.  Bristol  and 
Rensselaerville  Turnpike  Co.,  23  Id.  222.)     Where  an  equitable  estop- 
pel in  pais  is  not  properly  pleaded,  but  on  the  trial  evidence  is  intro- 
duced without  objection,  in  the  same  manner  as  if  it  had  been  properly 


IN    EJECTMENT.  923 

pleaded,  and  a  verdict  is  rendered  upon  the  evidence,  without  objec- 
tion, the  objection  to  the  pleading  will  be  deemed  waived,  and  the 
case  will  be  considered  as  though  the  estoppel  had  been  properly 
pleaded.  Davis  v.  Davis,  26  Cat.  38. 

46.  Estoppel. — An  estoppel  by  deed  or  matter  of  record  should 
be  pleaded  as  such,  where  there  is  an  opportunity  to  plead  it.     Where 
no  opportunity  to  plead  it  occurs,  it  is  conclusive  as  evidence.     (Flan- 
dreau  v.  Downey,  23    Cal.  354;  Corkhill  v.  Landers,  44  Barb.  218.) 
So  far  as  a  deed  is  intended  to  pass  or  extinguish  a  right,  it  is  the 
exclusive  evidence  of  the  contract,  and  the  party  is  concluded  by  its 
terms;  but  the  deed  is  not  conclusive  evidence  of  the  existence  of  facts 
acknowledged  in  the  instrument,  such  as  its  date,  acknowledgement  of 
payment,  consideration,  etc.     (Rhine  v.  Ellen,  36  Cal.  362.)     Where 
plaintiff  had  possession  under  a  deed  duly  recorded,  and  the  defendant 
entered  with  notice  of  and  in  subordination  to  plaintiffs  title,  he  can- 
not be  permitted  to  deny  it  in  an  action  of  ejectment.     Stephens  v. 
Mansfield,  u  Cal.  363. 

47.  Former  Judgment. — A  judgment   in  an  action  of  eject- 
ment, in  which  the  landlord  of  the  defendant  defends  the  action  for 
and  in  the  name  of  his  tenant,  and  puts  his  own  title  in  issue,  is  admissible 
in  evidence  by  way  of  estoppel  in  an  action  of  ejectment,  brought  by 
the  same  plaintiff  against  such  landlord.     Russell  v.  Mallon,  Cal.   Sup. 
Ct.,     Jul.     T.,    1869;    Valentine   v.  Mahoney,    Cal.    Sup.    Ct.,    Apl. 
T.,  1869. 

48.  Landlord  and  Tenant. — A  tenant  is  estopped  to  deny  that 
his  landlord  has  a  legal  reversion,  though  it  appear  from  the  instru- 
ment of  demise  that  the  landlord  has  only  an  equity  of  redemption. 
(Morton  v.  Woods,  Law  Rep,  3  Q.B.  658.)   As  between  landlord  and 
tenant,  the  estoppel  is  designed  as  a  shield  for  the  protection  of  the 
former,  but  not  as  a  sword  for  the  destruction  of  the  latter.     (Franklin 
v.  Merida,   35   Cal.    558.)     The  bare  possession  by  the  tenant  of  the 
demised  land  at  the  time  the  lease  is  given,  is  sufficient  to  take  the 
case  out  of  the  operation  of  the  general  rule,  and  the  tenant  cannot 
before  surrendering  possession,  dispute  the  landlord's  title.     (Tewks- 
bury  v.  Magraff,  33  Cal.  237;  affirmed,    Franklin  v.  Merida,  35    Cal. 
558.)      If  A.  being  in  possession  of  land,  deliver  the  possession  to  B. 
upon  his  request  and  upon  his  promise  to  return  it,  with  or  without 
rent,  at  a  specified  time,  or  at  the  will  of  A.,  B.  cannot  be  allowed,  while 


924  FORMS    OF    ANSWERS. 

still  retaining  the  possession,  to  dispute  A.'s  title;  but  it  is  otherwise  if 
B.  is  in  possession  and  takes  a  lease  from  A.,  since  the  latter  parts  with 
nothing,  and  the  former  has  obtained  nothing  by  the  transaction. 
(Franklin  v.  Merida,  35  Cal.  558.)  A  tenant  of  the  defendant  in  eject- 
ment, who  acquired  his  lease  before  the  commencement  of  the  suit,  is 
not  estopped  as  to  his  term  by  the  judgment  in  an  action  obtained 
against  his  lessor;  (Satterlee  v.  Bliss,  36  Cal.  489;)  as  the  estoppel 
of  a  party  with  respect  to  the  assertion  of  one  title  may  not  avail  to 
prevent  him  from  setting  up  another,  differently  derived.  Wheeler  v. 
Ruckman,  2  Abb.  Pr.  (N.S.)  186. 

49.  May  be  Pleaded. — Equitable  estoppels  and  defenses  can  be 
entertained  in  actions  at  law,  but.  they  must  be  specially  stated  in  the 
answer.      (Clark  v.  Huber,  25   Cal.  593;  Davis  v.  Davis,  26  Id.  39.) 
Title  acquired  by  deed  or  matter  of  record  should  be  pleaded  as  such. 
(Flandreau  v.  Downey,  23  Cal.  354;  Corkill  v.  Landers,  44  Barb.  218.) 
But  equitable  estoppels  are  waived  by  omission  voluntarily  to  plead 
them*     (Clark  v.  Huber,  25  Cal.  593;  i  Saund.  325;  2  B.  &  A.  668; 
2  Bing.  377;  4  B'ing.  N.C.  748.)      If  defendant  has  no  opportunity 
to  plead  estoppel,  he  may  exhibit  the  matter  thereof  in  evidence. 
Philadelphia  R.R.  Co.  v.  Howard,  13  How.  U.S.  308. 

• 

50.  Must  be  Sufficiently  Pleaded. — The  Court,  and  not  the 
jury,  must  pass  upon  the  equitable  title  set  up  in  the  answer,  and  it 
must  be  sufficiently  pleaded  to  warrant  the  Court  in  granting  a  decree 
which  will  estop  the  further  prosecution  of  the  action.      Arguello  v. 
Edinger,  10  Cal.  150;  Lestrade  v.  Earth,  19  Cal.  660;  Patterson  v.  Ely, 
19  Cal.  28;  Estrade  v.  Murphy,  Id.  248;  Meador  v.  Parsons,  Id.  294; 
Davis  v.  Davis,  26  Cal.  38;  Clark  v.  Huber,  25  Cal.  597;  Carpentier 
v.  City  of  Oakland,  30  Id.  439;  Flandreau  v.  Downey,  23   Cal.  354; 
Blum  v.  Robertson,  24  Id.  146;  Downer  v.  Smith,  24  Id.  124. 

51.  Purchase  of  Adverse  Claim. — One  who  is  in  possession 
of  and  claiming  to  own  land,  does  not  admit  title  in  another  because  he 
buys  the  other's  claim  of  title,  solely  to  quiet  his  own  title  and  avoid  liti- 
gation.    Such  purchaser  is  not  estopped  by  such  purchase  from  deny- 
ing the  validity  of  the  claim  thus  purchased.     Cannon  v.  Stockmon,  36 
Cal.  535. 


IN    EJECTMENT.  925 

JV0.  764. 

vi.    Equitable  Estate  in  Defendant. 
[TITLE.] 
The  defendant  answers  to  the  complaint: 

First — For  a  first  defense: 
I.    [Deny  title  in  plaintiff I\ 

Second — By  way  of  counter  claim,  defendant  alleges: 

I.  That  on  the   ...    day  of ,   1 8 . . ,  the 

plaintiff  executed  and  delivered  to  the  defendant   his 
agreement  in  writing,  for  the  sale  and  conveyance  to  the 
defendant  of  the  premises  described  in  the  complaint,  a 
copy    of  which   agreement  is    as    follows:    \_Copy  the 
agreementl\ 

II.  That  the  defendant  fully  performed  all  the  con- 
ditions of  said  agreement  on  his  part. 

Wherefore  defendant  demands  that  the  plaintiff  be 
adjudged  to  convey  said  premises  to  the  defendant,  in 
fee,  by  deed,  with  covenants,  in  pursuance  of  said  agree- 
ment, and  be  enjoined  from  the  further  prosecution  of 
this  action. 


53.  Character  of  Defense. — When  an  equitable  answer  is  inter- 
posed to  an  action  of  ejectment,  said  answer,  being  a  bill  in  equity,  can 
only  be  interposed  where  the  parties  to  the  action  are  such  as  would  be 
required  to  a  bill  in  equity  seeking  the  same  relief.      Lestrade  v.  Earth, 
19  Cal.  660. 

54.  Defense  may  be  Interposed. — Under  our  system  of  prac- 
tice, equitable  defenses  may  be  interposed  to  the  action  of  ejectment, 
but  the  defendant  in  such  cases  becomes  an  actor  with  respect  to  the 


920  FORMS    OF   ANSWERS. 

matter  presented  by  him,  and  his  answer  must  contain  all  the  essential 
averments  of  a  bill  in  equity,  and  the  equity  presented  must  be  of  such 
a  character  that  it  may  be  ripened  by  the  decree  of  the  Court  into  a 
legal  right  to  the  premises,  or  such  as  will  stop  the  plaintiff  in  the  pros- 
ecution of  the  action.  (Lestrade  v.  Murphy,  1 9  Cal.  248 ;  Weber  v.  Mar- 
shall, Id.  447;  Downer  v.  Smith,  24  Id.  124;  Blum  v.  Robertson, 
Id.  146.)  And  he  must  inform  the  adverse  party  of  the  nature  of  the 
cause  of  action  or  defense  which  he  will  be  obliged  to  meet,  and  to  do 
this  he  must  plead  it  with  the  same  fullness  and  particularity  as  is 
required  in  cases  involving  like  subjects  of  inquiry  in  suits  of  equity. 
Davis  v.  Davis,  26  Cal.  38. 

55.  Election  of  Remedy. — Although  a  party  may  set  up  an 
equitable  defense  to  an  action  at  law,  he  is  not  confined  to  that  proceed- 
ing.    He  may  let  the  judgment  go  at  law,  and  file  his  bill  in  equity  for 
relief.     Lorraine  v.  Long,  6  Cal.  452. 

56.  Equitable  Title. — An  equitable  title  arising  out  of  a  con- 
tract for  a  sale  of  land,  is  a  defense  to  an  action  instituted  to  recover 
possession  of  the  land,  the  subject  of  the  contract.     Tibeau  v.  Tibeau, 
19  Mo.  78. 

57.  Injunction. — The  defense  arising  from  a  verbal  contract  for 
the  sale  of  land,  accompanied  with  acts  of  part  performance,  taking 
the  contract  from  the  operation  of  the  Statute,  is  permissible,  under  our 
system  of  practice,  to  an  action  of  ejectment  for  the  recovery  of  the 
premises.     The  only  effect  of  this  mode  of  asserting  the  rights  of  the 
defendants,  instead  of  filing  a  bill  in  equity,  is  to  require  the  Court  to 
pass  upon  the  questions  raised  by  the  answer  in  the  first  instance.     If, 
upon  hearing  the  evidence,  the  Court  should  determine  there  was 
ground  for  relief,  it  would  enjoin  the  further  prosecution  of  the  action 
with  its  decree  for  a  specific  performance;  and,  on  the  other  hand,  if  it 
should  refuse  the  relief,  it  would  call  a  jury  to  determine  the  issue  upon 
the  general  denial.     Arguello  v.  Edinger,  10  Cal.  150. 

58.  Must  be  Specially  Pleaded. — Equitable  titles,  defenses  and 
estoppels  must  be  specially  pleaded.     (Clarke  v.  Huber,  25  Cal.  567; 
Carpentier  v.  The  City  of  Oakland,  30  Cal.  439;  Flandreau  v.  Downey, 
23  Cal.  354;  Blum  v.  Robertson,  24  Cal.  146;  Downer  v.  Smith,  24 
Cal.  124.)     Equitable  defense  is  fully  available  under  the  Code  in  this 
form  of  action.     (Murray  v.  Walker,  31  N.K  399;  Safford  v.  Hynds, 


IN    EJECTMENT.  927 

39  Barb.  625;  Traphagen  v.  Traphagen,  40  Barb.  537;  McBurney  v. 
Willman,  42  Barb.  39;  Lee  v.  Parker,  43  Barb.  611;  Corkhill  v. 
Landers,  44  Barb.  216.)  The  equitable  defense  is  first  to  be  passed 
upon  by  the  Court;  (Lestrade  v.  Earth,  19  Cal.  660;)  and  until  it  is  dis- 
posed of  the  assertion  of  the  legal  remedy  is  in  effect  stayed.  Upon 
the  determination  of  the  Court  upon  the  relief  prayed  by  the  answer, 
the  necessity  of  proceeding  with  the  action  at  law  will  depend.  When 
it  does  proceed,  the  legal  title  will  control  its  result.  (Estrada  v. 
Murphy,  19  Cal.  248;  Martin  v.  Zellerbach,  Cal.  Sup.  C/.,  Jul. 
T.,  1869.)  In  such  suit,  the  Court  sitting  in  equity  may  direct,  when 
proper,  an  issue  to  be  framed  upon  the  pleadings,  and  submitted  to  a 
jury,  if  questions  of  a  purely  legal  character  in  relation  to  the  title  arise. 
(Curtis  v.  Sutler,  15  Cal.  259.)  And  it  is  irregular  to  submit  t&  the 
jury  all  the  legal  and  equitable  defenses  together.  Lestrade  v.  Barth, 
19  Cal.  660. 


No.  765. 

vii.      Adverse   Possession. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  at  the  time  of  the  delivery  of  the  deed  alleged 
in  the  complaint,  the  lands  therein  described  were  in 
the  actual  possession  of  one  A.B.,  who  then  and  ever 
since  claimed  to  be  the  owner  thereof,  and  now  claims 
adversely  to  the  said  grantor. 


59.  Adverse  Possession. — Adverse  possession  is  of  two  kinds: 
First,  where  possession  is  taken  without  color  of  title,  but  with  intent 
to  claim  the  fee  against  all  comers:     Second,  where  possession  is  taken 
under  a  claim  of  title  founded  on  a  written  instrument  or  a  judgment 
of  a  court  of  competent  jurisdiction.     (Kimball  v.  Lohmas,  31  Cal. 
54.)     It  may  be  acquired  to  part  of  a  tract,  while  the  owner  of  the 
title  is  in  possession  of  the  .other  part  of  the  same  tract.     Davis  v. 
Perley,  30  Cal.  630. 

60.  Adverse  Possession  of  Water. — The  right  to  the  use 


928  FORMS    OF    ANSWERS. 

of  a  watercourse  on  the  public  lands  may  be  held,  granted,  abandoned, 
or  lost  by  the  same  means  as  a  right  of  the  same  character  issuing  out 
of  lands  to  which  a  private  title  exists.  And  on  adverse  possession,  for 
the  time  provided  by  Statute  of  Limitations,  the  law  will  presume  a 
grant  of  the  right  to  its  use.  Union  Water  Co.  v.  Crary,  25  Cal.  504; 
see  Humphreys  v.  McCall,  9  Cal.  59. 

62.  Consecutive  Possession. — The  possession  of  several  per- 
sons in  succession,  claiming  under  the  same  title,  is  the  same  posses- 
sion.    (Lea  •  v.  Polk   Co.    Copper  Co.,    21    How.    U.S.  493.)     So,  a 
vendee's  possession  may  be  joined  with  that  of  his  vendor.    (Alexander 
v.  Pendleton,  8  Crunch,  462.)     But  the  possession  of  different  intruders 
in  succession  cannot  be-  added  together  to  create  a  title  in  the  last 
intruder,  especially  where  there  is  no  privity  between  them.     (Potts  v. 
Gilbert,  3  Wash.    C.    Ct.    475;    overruled   in   part,   see   Overfield   v. 
Christie,   7  Serg.  <$f  R.  173;  Sheetz  v.  Fitzwater,  5  Perm.  126.)     The 
decision  that  adverse  possession  is  not  transferable  was  never  acknowl- 
edged as  sound  by  any  land  lawyer  or  judge  of  Pennsylvania.    (Moore 
v.  Small,  9  Penn.  194.)     Where,  to  ejectment  on  a  patent  to  plaintiffs 
for  land  from  the  United  States,  defendants  plead  possession  in  them- 
selves, and  the  parties  through  whom  they  claim,  for  five  years  before  the 
commencement  of  the  action,  oil  the  fourth   of  March,    1860,    but 
admitted  the  issuance  of  the  patent  on  the  nineteenth  of  February, 
1865:    Held,  that  the  plea  is  of  no  avail,  because  the  admission  shows 
plaintiffs  were  seized  of  the  premises  within  the  five  years.     (Fremont 
v.  Seals,  1 8  Cal.  433.)     If  the  possession  of  two  or  more  persons  in 
succession,  holding  in  privity  with  each  other,  under  title  or  color  of 
title,  makes  out  the  prescribed  time,  the  bar  is  complete.    10  Tex.  382; 
Christy  v.  Alford,  17  How.  U.S.  60 1. 

63.  Equitable  Title. — The  purchaser  of  an  equitable  title  by  bond 
or  contract,  may,  equally  with  the  purchaser  of  the  legal  title  by  deed,  set 
up  his  possession  as  adverse  to  the  vendor,  as  the  vendor  without  a  deed 
is  the  trustee  of  the  vendee  for  the  conveyance  of  the  title.     (Boone  v. 
Chiles,  10  Pet.  177.)     But  a  possession  under  a  purchase,  without  deed 
or  payment  of  purchase-money,  cannot  by  lapse  of  time  ripen  into  a 
title.     Possession  is  in  such  case  possession  of  the  vendor,  and  the 
same  as  landlord  and  tenant.     Stansbury  v.  Taggart,  3  McLean,  457. 

64.  Essential  Allegations. — It  was  held  in  (Clarke  v.  Hughes, 
13  Barb.  147),  that  an  answer  of  adverse  possession  must  give  the  name 


IN    EJECTMENT.  929 

of  the  possessor,  and  allege  that  he  had  title,  and  state  the  facts  which 
are  necessary  to  show  the  possession  adverse.  This  case  must  be  #e- 
gardetf  as  overruled,  so  far  as  it  relates  to  the  exclusion  of  evidence  at 
the  trial  where  there  is  no  such  averment,  in  White  v.  Spencer  14 
N.Y.  247. 

65.  Five   Years'   Possession  Construed. — A  defendant  in 
ejectment,  who  relies  on  the  Statute  of  Limitations,  need  not  prove  ad- 
verse possession  for  the  five  years  next  preceding  the  commencement  of 
the  action.     His  defense  is  complete  if  he  shows  a  five  years'  continued 
adverse  possession,  although  not  the  five  years  next  preceding  the  com- 
mencement of  the  suit.     (Moon  v.  Rollins,  36  Cal.  333;  Cannons. 
Stockmon,  36  Cal.  538.)     The  fee  acquired  by  a  five  years'  possession 
continues  till  conveyed  by  the  possessor,  or  till  lost  by  another  ad- 
verse possession  of  five  years.     Moon  v.  Rollins,  36  Cal.  333. 

66.  Must  be  Specially  Pleaded. — Adverse  possession,  if  set 
up  as  a  defense,  must  be  specially  pleaded.      But  title  out  of  the 
plaintiff  may  be  shown  under  a  general  denial.     (Raynor  v.  Timerson, 
46  Barb.  518.)     An  answer  denying  that  defendant  is  in  possession,  or 
that  he  unlawfully  withholds  possession,  does  not  raise  the  question  of 
adverse  possession,  or  authorize  a  fccovery  for  defendant  on  that  ground. 
If  he  seeks  to  prevail  upon  an  adverse  possession,  or  on  the  ground  that 
the  conveyance  under  which  plaintiff  claims  was  made  pending  an  ad- 
verse possession,  he  should  in  his  answer  set  up  title  in  himself  or  out 
of    the    plaintiff.      Ford    v.   Sampson,,   8   Abb.   Pr.    332;    S.C.,    30 
Barb.  183. 

67.  Possession  as  Tenants   in  Common. — A  party  relying 
upon  an  advgrse  possession  for  five  years,  of  land  owned  by  himself  and 
the  adverse  party  as  tenants  in  common,  must  allege,  by  pleading  facts 
from  which  it  will  affirmatively  appear,  that  his  possession  was  of  an 
adverse  and   positive  character;  otherwise  his  possession  of  the  land, 
though  exclusive,  will  be  deemed  to  be  according  to  his  right,  and  in 
support  of  the  title  in  common.     Lick  v.  Diaz,  30  Cal.  65. 

68.  Prescription. — To  constitute  a  foundation  for  adverse  posses- 
sion at  the  common  law,  the  instrument  under  which  the  occupant  en- 
tered must  purport  in  its  terms  to  transfer  the  title,  and  the  occupant 
must  have  entered  under  it  in  good  faith,  and  with  intention  to  hold 
against    all    the   world.     (Nieto    v.    Carpenter,    31     Cal.    455.)     No 
title  to  public  lands,  mineral  or  otherwise,  will  accrue  to  any  person 

59 


93O  FORMS    OF     ANSWERS. 

against  the  General  Government,  by  pre-emption  or  otherwise.  (Dovan 
v.  C.  P.  R.R.  Co.,  24  Cat.  245;  Jackson  v.  Porter,  i  Paine,  457.)  At 
common  law,  an  adverse  possession  of  fifty  years,  though  with  ftiowl- 
edge  of  a  better  title,  constitutes  a  good  defense  against  that  title. 
Alexander  v.  Pendleton,  8  Cranch,  462;  Ewing  v.  Burnett,  n  Pet.  41; 
affirming  i  McLean  266. 

69.  Statute  of  Limitations. — The  Statute  of  Limitations  runs 
only  in  favor  of   parties  in  possession  claiming  title  adversely  to  the 
whole  world,  and  not  in  favor  of  those  who  assert  the  title  to  be  in 
others.     It,  therefore,  never  runs  in  favor  of  the  plaintiff,  and  the  grantees 
of  the  plaintiff  are  in  no  better  position.     Their  possession  cannot 
be  tacked  on  to  that  of  the  grantor,  so  as  to  render  adverse  the  posses- 
sion for  the  entire  period  subsequent  to  the  sale.     (McCracken  v.  City 
of  San  Francisco,  16  Cal.  591,)     It  must  be  accompanied  with  a  claim 
of  title,  and  this  claim,  when  founded  "upon  a  written  instrument,  as 
being    a    conveyance    of    the    premises,"    must    be    absolute,    not 
dependant  upon  any  contingencies,  and  must  be   "  exclusive  of  any 
other  right;"  and  to  render  the  adverse  possession  thus  commenced 
effectual  as  a  bar  to  a  recovery  by  the  true  owner,  the  possession  must  be 
continued  without  interruption,  undei  such  claim,  for  five  years.     (Id.) 
If  the  plaintiff,  in  his  complaint  iiv  ejectment,  relies  on  a  title  de- 
rived from  the   Mexican   Goernment,  and  confirmed  by  the  Uuited 
States,    without  stating  the   time   of  confirmation,   an   answer  which 
sets  up  as  a  defense  the  Statute  of  Limitations  is  good,  without  stat- 
ing that  the  Mexican  Grant  was  finally  confirmed  within  less   than 
five  years  next  before  the  commencement  of  the  action.     (Anderson  v. 
Fisk,  36  Cal.  625.)     A  plea  of  the  Statute  of  Limitations  of  two  years 
under  the  "Settlers'  Act,"  is  no  defense;  (Anderson  v.  Fisk,  36  Cal. 
625;)  as  this  act  has  been  decided  to  be  unconstitutional  and  void. 
Billings  v.  Hall,  7   Cal.  i;  Lathrop  v.  Mills,  19  Cal.  513;  Pioche  v. 
Paul,  22  Cal.  105. 

70.  Statute,  how   Construed. — It   is  a  universally  accepted 
rule,  that  Statutes  of  Limitations  are  to  be  strictly  construed.     General 
words  in  the  Statute  must  receive  a  general  construction,  and,  if  there 
be  no  express  exception,  the  Courts  can  make  one.     (Tynan  v.  Walker, 
35  Cal.  634.)     The  clause  in  the  Statute  of  Limitations  which  provides 
that  civil  actions  shall  be  commenced  within  certain  periods  therein 
prescribed  "after  the  cause  of  action  shall  have  accrued,"  does  not 
imply,  in  addition,  the  existence  of  a  person  legally  competent  to  en- 


IN    EJECTMENT.  93! 

force  it  by  suit.  The  Statute  must  run  in  all  cases  not  therein  expressly 
excepted  from  its  operation.  (Tynan  v.  Walker,  35  Cal.  634.)  An 
equitable  action,  to  set  aside  a  fraudulent  deed  of  real  estate,  when  the 
effect  would  be  to  restore  the  possession  to  the  defrauded  party,  is  an 
action  for  the  recovery  of  real  estate,  and  governed  by  the  Statute  of 
Limitations  applicable  to  such  actions.  City  of  Oakland  v.  Carpentier, 
13  Cal.  540. 

71.  Statute,  how  Pleaded. — There  is  no  technical  rule  ob- 
served by  the  Court  of  Chancery  as  to  the  form  of  a  plea  of  the  Statute 
of  Limitations.  A  plea  which  sets  up  an  adverse  possession  of  forty 
years,  while  the  period  required  by  the  Statute  of  the  State  to  bar  a  re- 
covery is  twenty  years,  is  good ;  nor  is  it  necessary  to  make  any  express 
reference  to  the  Statute  of  the  State.  (Harpending  v.  Reform.  Dutch 
Church,  1 6  Pet.  455.)  It  must  be  pleaded  at  the  proper  time,  with  no 
day  of  grace  thereafter.  (Cooke  v.  Spear,  2  Cal.  409;  to  the  same 
effect,  Meeks  v.  Hahn,  20  Cal.  620;  and  American  Co.  v.  Bradford,  27 
Cal.  360.)  If  an  action  of  ejectment  is  in  the  name  of  the  plaintiff 
who  has  sold  pending  the  action,  the  defendant  cannot  plead  the  Statute 
of  Limitations  as  against  the  vendee  of  the  plaintiff.  (Moss  v.  Shear, 

30  Cal.  468)     What  such  a  plea  should  state  in  ejectment,  see  Sharp  v. 
Daugney,  33  Cal.  505;  Vassault*.  Seitz,  31  Cal.  225. 

T2.  Title  by  Adverse  Possession. — A  person  in  the  adverse 
possession  of  land  for  five  years,  claiming  to  own  the  same  exclusive  of 
any  other  right,  thereby  acquires  a  fee  simple  title  to  the  same;  and  if 
he  is  then  ousted,  even  by  the  party  having  the  paper  title,  he  can  re- 
cover possession  at  any  time  before  his  right  of  action  is  barred  by  a 
five  years'  adverse  possession.  (Cannon  v.  Stockman,  36  Cal.  535;  cit- 
ing as  authority,  Arrington  v.  Liscom,  34  Cal.  365;  Vassault  z>.  Seitz, 

31  Cal.  225.)     Evidence  of  acts  and  declarations  of  one  in  possession. 
The  party  claiming  title  by  virtue  of  five  years'  adverse  possession,  may 
give  in  evidence  his  acts  and  declarations  made  or  done  at  any  time 
while  in  possession,  for  the  purpose  of  showing  the  character  in  which 
he  claimed.     Cannon  v.  Stockmon,  36  Cal.  535. 


FORMS  OF  ANSWERS — SUBDIVISION  SIXTH, 

In  Actions  Concerning  Real  Property. 


CHAPTER  I. 

FORECLOSURE    OF    MORTGAGES   AND  LIENS. 

*  No.  766. 

Denial  of  Mortgage. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  has  not  knowledge  or  information  sufficient 
to  form  a  belief  as  to  whether  the  defendant  \mort- 
gagor~\  ever  executed  the  bond  and  mortgage  de- 
scribed in  the  complaint,  or  whether  the  defendant 
\mortgagee~\  ever  assigned  said  supposed  bond  and  mort- 
gage to  the  plaintiff,  or  whether  he  is  now  the  lawful 
owner  or  holder  thereof. 


NOTE. — This  form  of  denial  is  applicable  to  Oregon.  (Code  of 
Oregon,  §  71),  New  York  (Code  of  N.Y.  §  149),  and  other  States,  but 
is  not  available  as  a  defense  in  California,  where  on  motion  it  would 
be  stricken  out.  See  Ante,  p.  695,  et  seq. 

1.  Conditional  Deed. — Where  the  answer,  while  averring  that  the 
deed  was  a  conditional  deed,  admits  that  the  money  was  received  by  de- 
fendant on  the  understanding  that,  if  the  money  was  repaid  in  six  months, 


IN  FORECLOSURE  OF  MORTGAGES,  ETC.      933 

with  interest,  plaintiff  was  to  re-convey,  and  does  not  specifically  deny 
that  the  money  was  loaned:  Held,  that  it  virtually  admitted  the  loan. 
(Lee  v.  Eyans,8  Cal.  424.)  The  allegation  in  the  answer,  that  unless 
the  money  was  returned,  the  property  should  remain  in  the  plaintiff,  does 
not  change  the  nature  of  the  contract.  This  is  in  the  usual  form  of  a 
mortgage.  Id. 

2.  Denial  of  Condition. — In   a  foreclosure   action,  the   com- 
plaint set  forth  the  condition  of  the  bond,  and  alleged  that  the  mort- 
gage was  executed  "with  the  same  conditions  as  the   bond."     The 
answer  denied  that  the  mortgage  sustained  the  condition,  repeating  it 
as  stated  .  in  the  complaint:  Held  insufficient   on  demurrer.     It   was 
not  a  denial  that  the  mortgage  contained,  by  reference  to  the  bond,  or 
otherwise,  substantially  the  same  condition.     To  raise  that  issue,  the 
defendant  should  have  denied  the  deeds,  or  set  forth  the  condition  of 
the  mortgage  in  hcec  verba,  that  the  Court  might  see  what  it  was.     Di- 
mon  v.  Dunn,  15  N.Y.  498. 

3.  Denial  of  Delivery. — Although  an  answer  denies  the  de- 
livery of  a  bond  and  mortgage,  still  their  possession  by  plaintiff  is  evi- 
dence of  deliver}'.     Blankman  v.  Vallejo,  15  Cal.  638. 

• 

4.  Disclaimer. — In  a  foreclosure  action,  a  defendant  who  is  not 
alleged  to  be  personally  liable,  and  who  disclaims  all  interest  in  the 
mortgaged  premises,  cannot  demand  a  judgment  against  the  plaintiff 
on  a  note,  a  bond,  or  a  covenant.     National  Fire '  Ins.  Co.  v.  McKay, 
21  N.Y.  191;  compare  Agate  v.  King,  17  Abb.  Pr.  159. 

5.  Former  Judgment. — A  judgment  that  the  mortgage  is  not  paid 
off,  is  not  conclusive  in  another  suit  as  to  amount  remainig  due.     (Camp- 
bell v.  Consalus,  40  Barb.  509.)     Judgment  of  foreclosure,  entered  on 
stipulation,  as  without  prejudice  to  claim  of  paramount  adverse  title  on 
part  of  defendant,  is  no  bar  to  his  subsequent  assertion  of  claim  so 
reserved.     (Lee  v.  Parker,  43  Barb.  611.)     Omission  to  set  up  para- 
mount title  in  defense  to  foreclosure  of  one  incumbrance  is  no  bar  to 
setting  it  up  as  a  defense  in  suit  to  foreclose  another  on  the  same  prop- 
erty.    Frost  v.  Koon,  30  N.Y.  428. 

6.  Fraudulent  Mortgage. — A  mortgage  fraudulently  given  for 
a  sum  greater  than  is  due,  and  not  in  good  faith,  as  a  pretended  security 
for  future  advances,    is  fraudulent  in  law  as  to  the  creditors  of  the 
mortgagor.      (Tully  v.   Harlo,   35  Cal.  302.)      E.    made  a  usurious 


934  FORMS    OF-  ANSWERS. 

mortgage  to  V.,  who  foreclosed  and  sold  to  an  innocent  third  party 
under  a  power  of  sale.  Held,  that  E.  could  not  set  up  the  usury  against 
the  purchaser.  (Elliott  v.  Wood,  53  Barb.  285.)  Where  the  defend- 
ant pleaded  non  est  factum  and  usury,  it  was  held  no  defense.  Camp 
•  v.  Small,  44  ///.  37. 

7.  Husband  and  Wife. — In  a  foreclosure  suit  on  a  note  and 
mortgage  of  the  homestead  executed  by  husband  and  wife,  the  wife 
alone  answered,  but  did  n£;  verify  her  answer.     On  suit  brought  to 
vacate  the  decree  rendered  in  the  foreclosure  suit,  the  wife,  having  been 
served  with  process,  cannot  complain  that  her  answer  was  not  verified. 
And  her  failure,  by  excusable  negligence,  to  make  defense  to  the  fore- 
closure, is  no  ground  to  vacate  the  decree,  if  it  be  shown  that  in  fact 
she  had  no  defense.     Pfeiffer  v.  Riehn,  13  Cal.  643. 

8.  Literal  and  Conjunctive  Denials. — Where  the  bond  in 
the  complaint  answers  to  the  description  of  the  bond  offered  in  evidence, 
and  as  the  complaint  avers  that  the  mortgage  was  given  to  secure  this 
bond,  the  denials  in  the  answer  being  literal  and  conjunctive,  the  exe- 
cution of  the  bond  and  mortgage  was  held  to  be  admitted   by  the 
answer,  as  also  that  the  mortgage  was  given  to  secure  the  debt  evidenced 
by  the  bond*.     Blankman  v.  Vallejo,  15  Cal.  638. 

9.  Mechanics'    Liens. — A  formal  objection  to  a  mechanic's 
claim,  should  be  raised  by  demurrer,  or  by  motion  to*  strike  it  off. 
(Lybrandt  v.  Eberly,   36  Penn.  347.)      The  formal  validity  of  a  me- 
chanic's lien  is  not  put  in  issue  by  a  plea  of  payment;  and  hence,  under 
such  plea,  the  claim  may  be  read  to  the  jury  as  an  admitted  cause  of 
action,  and  may  be  sent  out  with  them.     (Lybrandt  v.  Eberly,  36  Penn. 
347.)     On  Feb.  6,  1867,  a  lien  law  was  approved  and  went  into  effect. 
Held,  that  no  lien  could  attach  for  work  done  before  Feb.  7.     Hunter 
v.  The  Savage  Consol.  Silv.  Min.  Co.,  4  Nev.  153. 

10.  Remedy  at  Law. — To  a  bill  for  foreclosure,  averring  that 
no  proceedings  at  law  have  been  had,  a  plea  that  the  complainant,  be- 
fore bill  filed,  had  recovered  a  judgment  for  the  debt,  is  good.     It  is 
not   necessary  to  add   that   the  complainant   had  not  exhausted    his 
remedy  at  law.     North  River  Bank  v.  Rogers,  8  Paige,  648. 

11.  Statute  of  Limitations. — The  Statute  of  Limitations  re- 
quires an  action  to  foreclose  a  mortgage  to  be  commenced  within  four 
years  from  the  time  when  the  cause  of  action  accrued,  and  the  Statute 


IN  FORECLOSURE  OF  MORTGAGES,  ETC.      935 

commences  to  run  from  the  time  the  note  is  due.  (Belloc  v.  Davis, 
Cal.  Sup.  O.,  Jul.  T.,  1869.)  Of  the  method  of  pleading  the  Statute  of 
Limitations,  in  an  action  brought  to  obtain  redempion  of  mortgaged 
premises,  see  Fogal  v.  Pirro,  10  Bosw.  100;  S.C.,  17  Abb.  Pr.  113. 

12.  Statute,  who  may  Plead. — In  an  action  to  recover  judg- 
ment for  the  amount  of  the  debt  secured  by  mortgage  on  real  estate, 
and  also  to  foreclose  the  mortgage,  the  grantees  of  the  mortgagor, 
purchasers  subsequent  to  the  execution  of  the  mortgage,  have  a  right  to 
plead  the  Statute  of  Limitations  as  to  that  part  of  the  claim  of  plaintiff 
which  asks  for  a  decree  foreclosing  the  mortgage,  and  a  sale  of  the  mort- 
gaged premises.     (Grattan  v.  Wiggins,  23  Cal.  16,)     A  party  who,  sub- 
sequent to  the  execution  of  a  mortgage,  purchases  the  property  from  the 
mortgagor,  may  avail  himself  of  the  Statute  of  Limitations  as  a  defense 
to  an  action  for  the  foreclosure  of  the  mortgage,  commenced  after  the 
Statute  has  run  against  the  debt  secured.     McCarthy  v.  White,  21  Cal. 
495;  see  Low  v.  Allen,  26  Cal.  141;  Lent  v.  Shear,  Id.  361. 

13.  Tax  Title. — Where  a  party  made  defendant  in  a  foreclosure 
suit,  as  claiming  some  interest  in  the  land,  sets  up,  as  a  full  defense,  a 
tax  title,  he  cannot  object  afterward  that  equity  has  no  jurisdiction  over 
tax  titles.     Kelsey  v.  Abbott,  1 3  Cal.  609. 

14.  Vendor's  Lien. — An  answer  in  an  action  to  enforce  a  vendor's 
lien,  which  sets  up  a  homestead  exemption,  is  demurrable  when  it  does 
not  contain  such  a  statement  of  facts  that  the  Court  can  determine 
whether  the  homestead  right  existed   or  not.     Pratt  v.  Delevan,   17 
Iowa,  307. 


No.   767. 

ii.    Mortgage  not  Recorded. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

That  the  said  plaintiff  did  not  cause  the  said  mort- 
gage to  be  recorded  as  alleged,  or  at  all. 


936  FORMS     OF     ANSWERS. 

No.  768. 

iii.    Mortgage  not  Assigned. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and 
alleges: 

That  the  said did  not,  by  deed  duly  exe- 
cuted, convey  all  his  right  or  title,  as  such  mortgagee, 
in  and  to  the  said  premises,  in  manner  and  form  as  the 
said  plaintiff  hath  in  his  said  complaint  alleged,  or  at  all. 

No.  769. 

iv.    Non-Joinder  of  Assignee  of  the  Mortgagor. 

[TlTLE.J 

The  defendant  answers  to  the  complaint,  and 
alleges: 

That  after  the  execution   of  said  mortgage  in  the 

complaint  described,  and  on  the  ....  day  of  . . , 

1 8 .  . ,  he,  by  deed  duly  executed,  conveyed  said  mort- 
gaged premises  in  fee  to  one  R.  S.,  who  is  now  living 
and  still  holds  said  title. 

JVo.   770. 

v.      No   Equitable   Assignment. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and 
alleges : 

That  the  said  A.B.  did  not  assign  or  transfer  to  the 
said  defendant  the  note  in  said  mortgage  men- 


IN   FORECLOSURE    OF    MORTGAGES,    ETC.  937 

tioned,  or  the  money  due  thereon,  in  manner  or 
form  as  the  said  plaintiff  hath  in  his  said  complaint 
alleged,  or  in  any  manner,  or  at  all. 


No.  771. 

vi.     Equity  of  Redemption  not  Assigned. 
[TITLE.] 

The    defendant    answers    to    the    complaint,   and 
denies: 

That  the  said  A.  B.  did  convey  his  equity  of  re- 
demption in  and  to  the  said  premises  in  said  complaint 
described,  in  manner  or  form  as  the  said  plaintiff  hath 
in  his  said  complaint  alleged,  or  in  any  manner,  or  at 
all. 

No.  772. 

vii.     Answer — Setting  up  a  Judgment. 

• 

[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  the  defendant,  on  the  ....  day  of , 

1 8 .  . ,  did  recover,  in  the  [state  the  court],  in  and  for  the 

County  of aforesaid,  a  judgment  against  the 

said  A.  B.,  for  the  sum  of dollars,   his  debt, 

and dollars,  his  costs  in  said  action. 

II.  That  the  said  judgment  is  in  full  force  in  law,  and 
wholly  due  and  unpaid,  and  is   and  has  been  a  subsist- 
ing lien  on  said  premises,  from  the  said  ....  day  of 


CHAPTER  II. 

NUISANCES. 

JVo.  773. 

i.    Denial  of  Plaintiff' s  Title. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  was  not,  is  not  now,  and  never  was 
possessed  of  the  premises  described  in  the  complaint,  or 
any  part  thereof. 

JVo.  774- 

ii.    Denial  of  Nuisance. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  defendant's  premises  have  not  been  used  as 
a  slaughter  house,  either  as  alleged  or  otherwise.  Or, 
That  defendant  did  not  erect  said  [dam] ,  as  alleged,  or 
otherwise,  or  at  all. 


1.  Diversion  of  Water. — In  an  action  to  recover  damages  for  the 
diversion  of  water  of  a  stream  from  plaintiff's  mills,  an  averment  as  to 
the  precise  quantity  of  water  required  for  the  use  of  the  mills,  and  to 
which  plaintiffs  claim  to  be  entitled,  is  an  immaterial  averment;  and  a 
recovery  of  damages  would  not  establish  plaintiff's  right  to  the  exact 
quantity  of  water  claimed,  so  as  to  be  res  adjudicata  in  a  subsequent  suit. 
McDonald  v.  Bear  River  and  Auburn  W.  and  M.  Co.,  15  Cal.  145. 


FOR    NUISANCES.  939 

2.  Irrelevant  Allegations, — In  an  action  to  abate  a  nuisance 
caused  by  running  a  ditch  for  the  conveyance  of  water  across  the  land 
of  the  plaintiff,  the  defendant  set  up  in  answer  that  it  was  mineral  land 
belonging  to  the  United  States,  and  that  the  ditch  was  for  mining  pur- 
poses.    Such   allegations  are   irrelevant,  and    constitute   no  defense. 
Weimar  v.  Lowery,  u  Cal.  104. 

3.  Issues  Raised. — If  the  plaintiff  sues  to  recover  damages  for 
flowing  sand  and  sediment  upon  land  averred  in  the  complaint  to  be  his, 
and  the  answer  denies  that  plaintiff  owns  the  land,  and  that  defendant 
wrongfully  flowed  the  sand  and  sediment  upon  the  land,  without  deny- 
ing that  he  caused  the  same  to  flow  upon  the  land,  it  does  not  admit 
that  defendant  caused  such  material  to  flow  upon  the  plaintiff's  land. 
(Wood  v.  Richardson,  35  Cal.  149.)    In  such  case,  the  plaintiff's  owner- 
ship of  the  land  is  put  in  issue.     Wood  v.  Richardson,  35  Cal.  149. 

4.  Obstructing  a  Public  Highway. — In  the  case  of  a  com- 
missioner suing  the  owner  of  the  land  for  obstructing  a  public  highway, 
it  is  the  undoubted  right  of  the  defendant  to  question  the  legal  existence 
of  the  highway.     Such  a  right,  however,  cannot  be  asserted  by  him  in 
any  case  in  a  justice's  court.     When  called  upon  to  plead,  if  he  only 
intends  to  deny  the  fact  that  he  placed  the  obstruction  in  the  road,  he 
may  rely  upon  a  general  denial  of  the  complaint.     If  he  wishes  to 
justify  upon  the  ground  that  he  had  the  right  to  put  the  fence  across  it, 
as  owner  of  the  land,  he  must  allege  that  he  is  such  owner;  and  this  is 
sufficient  to  raise  a  question  of  title  in  a  justice's  court,  for  such  an 
answer  can  mean  nothing  unless  the  defendant  intends  to  question  the 
public  right  of  way  over  his  land.     Little  v.  Denn,  34  N.  Y.  452. 

5.  Want  of  Care. — The  want  of  reasonable  care  on  the  part  of 
another,  who  is  injured  by  the  breaking,  cannot  be  set  up  in  defense  to 
an  action  for  damages  for  the  injuries  thus  suffered  in  the  breaking  of 
defendants'  dam.     Fraler  v.  Sears  Union  Water  Co.,  12  Cal.  555. 


CHAPTER  III. 

PARTITION. 

JVo.  775. 

Pendency  of  Partnership. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That    the    premises    of    which  the    plaintiff    seeks 
partition  belong  to  the  parties  to  the  action  as  tenants 
in  common.     \Here  state  the  nature  and  extent  of  de- 
fendant 's  interest]. 

1.  Answer — What  to   Contain. — The  defendants,  who  have 
been  personally  served  with  the  summons,  and  a  certified  copy  of  the 
complaint,  shall  set  forth  in  their  answer,  fully  and  particularly,  the  na- 
ture and  extent  of  their  interest  in  the  property;  and  if  such  defendants 
claim  a  lien  upon  the  property,  by  mortgage,  judgment,  or  otherwise, 
they  shall  state  the  amount  and  date  of  the  same,  and  the  amount  re- 
maining due  thereon,  and  whether  the  amount  has  been  secured  in  any 
other  way  or  not,  and  if  secured,  the  extent  and  nature  of  the  security, 
or  they  shall  be  deemed  to  have  waived  their  right  to  such  lien.     Cal. 
Pr.  Act,  §  270. 

2.  Disclaimer. — In  an  action  of  partition,  a  defendant  cannot 
claim  that  the  action  be  dismissed  as  to  him,  on  the  ground  that  his 
answer  disclaims  any  interest  in  the  land,  unless  he  has  made  the  dis- 
claimer in  absolute  and  unconditional  terms.     (De  Uprey  z>.  De  Uprey, 
27  Cal.  331.)     A  defendant  in  partition  is  not  entitled  to  have  the  action 
dismissed  by  reason  of  the  force  and  effect  of  any  defense  which  he 
may  set  up  in  his  answer.     Id. 


FOR     PARTITION.  94! 

3.  Form. — For  a  fuller  form,  see  Danvers  v.  Dorrity,   14  Abb. 
Pr.  206. 

4.  Infant. — Guardians  ad  litem,  appointed  to  represent  an  infant 
in  a  case  of  partition,  have  power  to  defend  for  the  infant  solely  against 
the  claim  set  up  for  partition  of  the  common  estate.     (Waterman  v. 
Lawrence,  19  Cal.  210.)     The  proceeding  for  partition  is  a  special  pro- 
ceeding, and  the  Statute  prescribes  its  course  and  effect;  and  though, 
after  jurisdiction  has  attached,  errors  in  the  course  of  the  cause  cannot 
be  collaterally  shown  to  impeach  a  judgment,  yet,  so  far  at  least  as  the 
rights  of  infants  are  involved,  the  Court  has  no  jurisdiction,  except  over 
the  matter  of  partition.     Id. 


CHAPTER  IV. 

QUIETING    TITLE. 

No.  776. 

i.   Answer  Containing  Special  Denial,    Plea  of  Statute  of  Limitations, 
and  Cross  Complaint  for  Quieting  Title. 

[TITLE.]  • 

The  defendant  answers  to  the  complaint: 

first — For  a  first  defense: 

[Deny  specially  each  allegation^ 

Second—And  for   a  further  and  separate  answer  and 
defense: 

I.  The  defendant  alleges  that  the  said  plaintiffs  claim 
that  they  are  owners  of  said  lots  of  land  and  premises 
in  complaint  and  hereinafter  described,  and  claim  title 
thereto  as  heirs  and  devisees  of  deceased. 


942  FORMS    OF     ANSWERS. 

II.  That  said  R.  P.,   in  his   lifetime,  to  wit,   in   the 
month  of ,  1 8 .  . ,  conveyed,  by  a  good  and  suf- 
ficient deed,  to  defendant's  predecessors  or  grantors,  in 
fee,  the  lots  or  tracts  of  land  hereinafter  described,  and 
that  after  the  making  and  delivery  of  said  deed,  said  R.  P. 
never  had,  nor  have  the  plaintiffs  or  any  of  them  since 
had,  nor  have  they  now,  either  as  heirs  or  devisees  of 
said  R.  P.  or  otherwise,  any  right,  title,  or  interest  in  or 
to  the  said  lands,  or  any  part  thereof. 

III.  That   the   said    deeds    so    duly    executed    by 
said  R.  P.,  whereby  the  title  of  said  R.  P.  to  said   lots 
of  land  was  vested  in  this  defendant's  predecessors  or 
grantors  as  aforesaid,  were  never  recorded  or  filed  for 
record,  and  were   destroyed  by  fire  on  or  about  the 

....  day  of ,  1 8 ... 

Third — And  for  a  further  and  separate  answer  and 
defense: 

The  defendant  alleges,  that  he  has  been  in  the 
quiet  and  peaceable  possession  of  the  pieces  or  lots  of 
land  hereinafter  described,  holding  and  claiming  the 
same  adversely  to  the  said  plaintiffs,  and  adversely  to 
all  other  persons,  for  more  than  five  years  before  the 
commencement  of  this  suit;  and  that  neither  the 
plaintiff  nor  any  of  them,  or  either  of  their  ancestors 
or  ancestor,  predecessors  or  grantors,  was  or  were 
seized  or  possessed  of  the  said  lots  of  land,  or  either  of 
them,  or  any  portion  of  the  same,  within  five  years  be- 
fore the  commencement  of  this  action. 

Fourtli — And   for   a    cross    complaint,    the    defendant 
alleges: 

I.    That  he  is  now,  and  was  at  the  commencement  of 


FOR     PARTITION.  943 

this  suit,  and  for  more  than  five  years  before  that  time, 
and  from  thence  up  to  that  time,  had  been  in  the  quiet 
and  peaceable  possession  and  occupancy  of  all  those 
certain  lots  or  pieces  of  land,  situate,  lying,  and  being 

in  the   City  and   County  of ,  being  the  same 

lots  in  the  complaint  described,  and  bounded  and  de- 
scribed as  follows,  to  wit:  \_give  description  of  land.~\ 

II.  That  the  said  plaintiffs  have  not,  nor  have  either 
or  any  of  them,  any  right,  title,  interest  or  right  of  pos- 
session in  or  to  the  said  described  premises,  or  any  part 
thereof;  that  the  said  plaintiffs  claim  to  have  some  right, 
title,  interest,  or  right  of  possession  in  or  to  the   said 
above  described  pieces  and  lots  of  land  adverse  to  de- 
fendant, and  claim  that  they  are  owners  thereof,  and 
claim    title    thereto,    as    heirs    and    devisees   of   R.  P. 
deceasec^  as  hereinbefore,  to  wit,   in  the  second  aver- 
ment of  the  answer  herein,  is  set  out. 

III,  That  said  R.  P.  duly  conveyed  to  defendant's  pre- 
decessors or  grantors,  in  fee,  the  lots  or  tracts  of  land 
hereinbefore  described,  as   in  the   second  averment  of 
said  answer  set  out,  and  defendant  alleges  that  the  said 
claim  of  the  said  plaintiffs  to  said  lots  of  land,  what- 
ever it  may  be,  is  against  the  nights  of  this   defendant, 
and  is  without  foundation,  and  is  a  cloud  upon  defend- 
ant's title  to  said  land  and  premises. 

Wherefore  defendant  prays  that  the  said  plaintiffs, 
and  every  one  of  them,  be  adjudged  to  produce  and 
bring  forward  any  and  all  claims  which  they  or  either  of 
them  have  or  make  upon  the  above  described  lots  or 
any  part  thereof;  and  that  the  same  may,  by  the  decree 
of  this  Court,  be  declared  invalid  and  of  no  effect,  and 
that  the  said  plaintiffs  be  perpetually  restrained  and  for- 


944  FORMS    OF    ANSWERS. 

bidden  from  setting  up  or  making  any  claim  to  or  upon 
the  said  premises;  and  that  all  such  claims  be  quieted; 
and  that  this  defendant  be  declared  and  adjudged  the 
owner,  and  of  right  in  the  possession  of  the  said  prem- 
ises and  every  part  thereof,  against  any  claim  of  the 
said  plaintiffs  or  any  of  them;  and  that  plaintiffs  be  ad- 
judged to  execute  to  this  defendant  a  deed  for  said  lots 
hereinbefore  described,  and  in  default  so  to  do  that  a 
commissioner  be  apppinted  by  this  Honorable  Court  for 
that  purpose;  and  for  such  other  or  further  order,  de- 
cree, or  judgment,  as  may  be  just  and  equitable  to 
defendant. 


1.  Insufficient  Defense. — Where  the  defendant,  in  an  action  to 
quiet  title  to  a  mining  claim  on  the  public  lands,  set  up  in  a  supple- 
mental answer  both  abandonment  and  forfeiture  by  the  plaintiffs  of 
their  asserted  title  and  possession  to  said  claim  after  suit  commenced, 
but  failed  to  set  up  any  subsequently  acquired  rights  therein  by  defend- 
ants: Held,  that  said  matters  were  unavailing  to  defendant  as  defenses 
to  the  action.     Pralus  v.  Pacific  G.  and  S.  M.  Co.,  35  Cal.  30. 

2.  Parties. — The  plaintiff  filed  her  bill  to  remove  a  cloud  upgn 
her  title  to  land,  created  by  her  husband's  deed  to  one  of  the  defend- 
ants, and  she  Kbined  in  the  bill  three  other  defendants,  one  of  whom  had 
bought  a  portion  of  the  land  from  the  plaintiff  and  her  husband,  and 
two  of  whom  held  a  mortgage  upon  the  property  executed  by  them. 
Held,  that  the  latter  were  unnecessary  parties,  as  the  grantee  in  the  deed, 
and  those  claiming  under  him,  were  the  only  parties  necessary  to  the 
complete  adjudication  of  the  case.     Peralta  v.  Simon,  5  Cal.  313. 

3.  Possession. — If  the  answer  in  an  action  to  quiet  title  admits 
plaintiff's  ownership  in  fee  simple,  and  possession,  the  rightfulness  of 
the  possession  follows  the  admission,  and  even  if  plaintiff  went  into 
possession  by  leave  of  defendant's  tenant,  he  is  not  estopped  from 
denying  defendant's  title.     (Reed  v.  Calderwood,  32  Cal.  109.)     If  a 
complaint  to  quiet  title  avers  plaintiff's  possession,  and  the  answer 
admits  the  averment,  this  admission  is  not  avoided  by  a  special  averment 
that  plaintiff  obtained  possession  by  collusion  with  defendant's  tenant. 


FOR    PARTITION.  945 

(Reed  v.  Caldervvood,  32  Cal.  109.)  The  objection  that  the  plaintiff 
had  not,  at  the  commencement  of  the  action,  actual  possession  of  the 
premises,  must  be  distinctly  taken  by  the  answer,  and  before  going  to 
trial  on  the  merits,  or  it  will  be  waived.  Jones  v.  Collins,  16  Wis.  594. 


JVo.  777. 

ii.    Disclaimer. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  disclaims  all  right,  title,  and  claim  to  any 
estate  of  inheritance  or  of  freehold  in  the  premises 
described. 


CHAPTER  V. 

• 

WASTE. 

No.  778. 

*    Dental  of  Waste. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and 
alleges: 

I.  That  defendant  is  not  guilty  of  the  waste  and  de- 
struction aforesaid,  in  manner  and  form  as  the  said 
plaintiff  hath  in  his  said  complaint  alleged,  or  in  any 

manner,  or  at  all. 

60 


946  FORMS    OF    ANSWERS. 

II.  That  defendant  does  not  hold  the  said  premises 
under  and  as  tenant  to  the  said  plaintiff,  in  manner  and 
form  as  the  plaintiff  in  his  complaint  hath  alleged,  or 
at  all. 

III.  That  the  said did  not  demise  the  said 

premises  to  the  said ,  in  manner  and  form  as 

the  said  plaintiff  hath  in  his  said  complaint  alleged,  or  in 
any  manner,  or  at  all. 


ANSWERS — SUBDIVISION  SEVENTH, 

For    Specific    Relief. 


CHAPTER.  I. 

CREDITOR'S  ACTION. 
No.  779. 

i.     Specific  Denials. 
[TITLE.] 

The    defendant    answers    to    the    complaint,    and 
alleges: 

I.  That  there  is  no  record  remaining  in  said  court 
of  such  recovery  as  the  plaintiff  has  alleged. 

II.  That  the  said  A.  B.  has  goods  and  chattels,  lands, 
and  tenements,  liable  to  execution  for  the  satisfaction  of 
money  due  on  the  said  judgment. 

III.  That  the  said  A.  B.  has  no  goods  or  chattels  or 
effects  of  the  said  plaintiff  in  his  hands. 


"L  Denial  of  Assignment. — An  allegation  in  the  complaint  that 
the  assignment  was  made  with  the  intent  to  hinder,  delay,  and  defraud 
creditors,  is  sufficiently  put  in  issue  by  a  denial  that  the  assignment  was 
made  with  intent  to  hinder  and  defraud  creditors.  Read  v.  Worthing- 
ton,  9  Bosw.  617. 

2.  Denial  that  Conveyance  was  Fraudulent. — That  upon 
the  making  of  the  alleged  assignment  [or  mortgage]  there  was  an  actual 


948  FORMS    OF    ANSWERS. 

and  continued  change  of  the  possession  of  the  assigned  [or  mortgaged] 
property  from  the  said  [debtor}  to  the  [transferees] ,  who,  immediately 
after  the  execution  of  the  assignment  [or  mortgage],  took  actual  and 
exclusive  possession  of  the  property;  and  that  it  has  at  all  times  since 
the  assignment  [or  mortgage]  remained  in  their  exclusive  possession 
and  control.  See  Churchill  v.  Bennett,  8  How,  Pr.  309. 

3.  Denial  of  Possession  of  Assets. — That  he  had  not,  at  the 
commencement  of  this  action,  nor  has  he  had  at  any  time  since,  prop- 
erty of  the  defendant  [debtor}  in  his  possession  or  under  his  control,  as 
alleged,  or  at  all,  or  in  any  manner. 

4.  Denial  of  Execution. — That  no  execution  upon  the  said 
judgment  was  ever  returned  unsatisfied  in  whole  or  in  part  [or  was  ever 
issued  to  the  said ]  before  this  action. 

5.  Denial  of  Judgment. — That  there  is  no  record  of  the  said 
judgment.     Chitt,  Forms,  108. 

6.  Defendant   has    Assets. — That  the   defendant    [judgment 
debtor}  has,  and  at  the  commencement  of  this  action  had,  real  property 

[or  personal  property,  or  both]  in  the  County  of ,  in  this  State, 

liable  to  execution,  and  sufficient  in  value  to  satisfy  said  judgment;  to 
wit:  [designating  what.} 

7.  Relief  by  Motion. — A  complaint  in  an  action  to  set  aside  a 
judgment,  which  contains  no  averment  showing  that  relief  could  not 
have  been  obtained  on  motion,  may  be  demurrable,  but  if  defendant 
fails  to  demur,  and  answers  on  the  merits,  and  the  facts  supplying  the 
defect  appear  in  the  record,  the  objection  is  waived.    Bibend  v.  Kreutz, 
20  Cal.  109. 

No.  780. 

ii.     Bona  Fide  Purchaser. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  the  plaintiff  ought  not  to  have  his  action 
aforesaid;  because  he  avers  that  the  said  defendant  did, 
on  the  ....  day  of ,  1 8 . . ,  buy  of  the  said 


IN   CREDITOR  S   ACTION.  949 

the  said  lands  and  tenements,  bona  fide, 

for  the  consideration  of dollars,  he,  the  said 

,  being  then  seized  in  fee,  and  in  possession  there- 
of \Jiere  state  how  and  when  paid,  and  if  notes  'were  given 
aver  the  giving  of  theni\ ,  and  without  any  fraud  or  intent  to 

hinder,  or  delay,  or  defraud  the  said ,  or  the 

other  creditors  of  the  said ,  and  without  any 

knowledge,  information,  or  belief,  at  that  time  or  pre- 
vious thereto,  that  the  said sold  the  said 

premises  with  the  intent  charged  in  the  said  com- 
plaint. 


8.  Conditional  Sale. — Where,  on   sale  of  personal  property, 
"  the  right  to  receive  payment  before  delivery  is  waived  by  the  seller, 
and  immediate  possession  is  given  to  the  purchaser,  and  yet,  by  express 
agreement,  the  title  is  to  remain  in  the  seller's  hands  until  the  payment 
of  the  price  upon  a  fixed  day,  such  payment  is  strictly  a  condition  pre- 
cedent, and,  until  performance,  the  right  of  property  is  not  vested  in  the 
purchaser."     (Putnam  v.  Lamphier,  36  CaL  151.)     A  second  vendee 
is  not  entitled  to  stand  in  any  better  situation  than  his  vendor,  in  regard 
to  the  title  of  personal  property,  other  than  negotiable  instruments,  and 
whatever  comes  under  the  general  naming  of  currency.     Whether  a 
further  exception  to  the  rule  exists  in  favor  of  bona  fide  purchases  from 
the  purchaser  at  a  conditional  sale,  is  not  decided.     Id. 

9.  Consideration. — And  it  was  also  essential  to  state  to  whom 
the  consideration  was  paid  on  the  purchase.     Tompkins  v.  Ward,  4 
Sand/.  Ch.  594. 

10.  Denial  Positive. — The  strict  rule  applied  in  chancery  re- 
quired that  a  party  claiming  as  a  bona  fide  purchaser,  without  notice, 
must  deny  notice  positively,  and  not  evasively,  though  it  were  not 
charged  in  the  bill,  and  every  fact  from  which  notice  might  be  inferred. 
(Frost  v.  Beekman,  i  Johns.  Ch.  288;  Denning  v.  Smith,  3  Id.  332; 
Gallatin  v.  Cunningham,  8   Cow.  361;   Wyckoff  v.  Sniffen,  2   Edw. 
581.)    And  must  deny  notice  to  any  agent.     Griffith  v.  Griffith,   9 
Paige,  315;  Hoffm.  153. 


950  FORMS    OF    -ANSWERS. 

11.  Essential  Averments. — Where  a  party  desires  in  his  plea 
or  answer  to  claim  that  he  was  a  bona  fide  purchaser  fora  valuable  con- 
sideration, he  should  state  the  deed  of  purchase,  with  the  date,  parties, 
and  contents,  briefly;  that  the  vendor  was  seized  in  fee,  and  in  posses- 
sion; the  consideration,  with  a  distinct  averment  that  it  was  bona  fide 
and  truly  paid,  independently  of  the  recital  in  the  deed;  and  how  the 
grantor  acquired  title.     Notice  should  be  denied  previous  to  and  down 
to  the  time  of  paying  the  money,  and  the  delivery  of  the  deed.    (Boone 
v.  Chiles,  10  Pet.  193.)     In  a  plea  of  a  purchase  for  a  valuable  consid- 
eration, without  notice  of  the  plaintiff's  title,  it  is  necessary  to  aver  that 
the  person  who  conveyed  was  seized,  or  pretended  to  be  seized,  at  the 
time  when  he  executed  the  purchase  deeds.     2  Atk.  630;  Flagg  v. 
Mann,  2  Sumn.  486,  557. 

12.  Notice. — A  plea  denying  nojtice  "  of  the  facts  and  circum- 
stances charged  "  was  evasive  and  insufficient,  but  was  cured  by  a  sub- 
sequent averment  that  the  defendant  was  without  notice  "  of  the  matters 
alleged,  or  any  of  them."      (Tompkins  v.  Anthon,  4  Sandf.  Ch.  97.) 
The  defendant  must  aver  and  prove,  not  only  that  he  had  no  notice 
before  his  purchase,  but  that  he  had  actually  paid  the  purchase-money 
before  such  notice.     Jewett  v.  Palmer,  7  Johns.  Ch.  65. 

13.  Possession  of  Grantor. — It  should  be  averred  that  the  de- 
fendant's grantor  was  in  the  actual  possession,  or  at  least  that  the  one 
under  whom  his  grantor  claimed  was  so.     Tompkins  v.  Anthon.  4 
Sandf.  Ch.  97. 


CHAPTER  II. 

DISSOLUTION    OF    PARTNERSHIP. 

No.  781. 

i.     That  the  Term  is  not  Expired. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  partnership  between  him  and  the  plaintiff, 
set  forth  in  the  complaint,  was  not  upon  the  terms  and 


IN    DISSOLUTION    OF     PARTNERSHIP.  951 

according  to  the  stipulations,  agreements,  or  covenants 
alleged  by  plaintiff  in  his  said  complaint;  but,  on  the 
contrary,  that  said  partnership  was  formed,  and  entered 
into,  and  carried  on,  under  and  in  pursuance  of  a  writ- 
ten agreement,  and  articles  of  co-partnership  between 
him  and  said  plaintiff;  a  copy  of  which  is  hereto  annexed, 
and  forms  part  of  this  answer,  showing  that  the  time  for 
the  continuance  of  said  co-partnership  is  not  yet  expired, 
which  agreement  has  never  been  altered  or  varied  in 
writing,  or  by  parol;  and  that  the  co-partnership  formed 
and  carried  on  in  pursuance  thereof  is  the  same  set  forth 
and  alleged  in  said  complaint. 

NOTE. — This  form  is  from  2  Van  Santv.  Eq.  Pr.  579. 

1.  Construction  of  Articles. — In  an  action  between  parties,  for 
an  accounting,  the  complaint  alleged,  and  the  articles  of  agreement 
which  were  set  forth  in  the  complaint  stated,  that  the  plaintiff  contrib- 
uted $2,250  to  the  capital  of  the  firm,  which  sum,  the  complaint  alleged, 
the  defendant  had  converted  to  his  own  use.  The  answer  denied  that 
the  $2,250  was  contributed  as  capital;  and  averred  that  it  was  to  be 
paid  by  the  plaintiff  for  an  equal  interest  in  the  business;  that  the 
money  was  paid  on  that  basis;  and  that  both  parties  have  acted  upon 
the  understanding  that  such  was  the  meaning  of  the  articles.  Held,  suf- 
ficient to  present  the  issue,  whether  the  articles  were  by  mistake  so 
drawn  as  not  to  express  the  actual  agreement  of  both  parties.  lies  z>. 
Tucker,  5  Duer,  393. 


JVo.  782. 

ii.     Overdrawing  Done  by  Plaintiff's  Assent. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  he  denies  each  and  every  allegation  set  forth  in 
the  [third  separate  cause  of  action  in]  said  complaint, 
relative  to  the  alleged  misconduct  of  defendant,  and  his 

o 


952  FORMS    OF    ANSWERS. 

alleged  acts  and  doings  in  the  management  of  the  said 
partnership  business,  except  the  allegation  of  his  draw- 
ing out  from  the  funds  of  said  co-partnership  more  than 
his  portion  of  the  profits  thereof;  to  wit,  the  sum  of 

dollars,  and  investing  the  same  in,  etc.,  etc. ; 

and  as  to  such  allegation,  defendant  alleges  and  states 
that  it  was  done  with  the  full  knowledge  of  said  plaintiff, 
and  with  his  approbation  and  express  assent. 


2.  Judgment,  when  a  Bar. — Judgment  for  winding  up  affairs 
of  corporation  no  bar  to  suit  to  enforce  individual  responsibility  of 
shareholder,  (Diven,  v.  Duncan,  41  Barb.  520.)  Suit  for  injunction 
to  restrain  debtor  from  making  assignment  in  violation  of  agreement, 
does  not  preclude  action  upon  debt  itself.  Paige  v.  Wilson,  8 
Bosw.  294. 


CHAPTER  III. 

ACTIONS    FOR    DIVORCE. 

No.  783. 

i.     General  Denial. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

And  admits  the  marriage  alleged  in  the  complaint, 
but  denies  each  and  every  other  allegation  of  said  com- 
plaint. 


1.  Desertion. — A  wife,  having  reason  to  believe  that  her  husband 
had  been  guilty  of  adultery,  separated  from  him,  and  instituted  a 
suit  for  divorce,  in  which  she  failed.  The  husband  never  thereafter 


FOR    DIVORCE.  953 

sought  to  resume  cohabitation,  nor  did  the  wife,  and  it  was  not  resumed. 
Held,  that  these  facts  did  not  constitute  desertion  by  the  husband.  Fitz- 
gerald v.  Fitzgerald,  C.R.  i  P.  &  D.  694. 


No.  78Jf. 

ii.    Denial  of  Adultery,  and  Counter  Claim. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 
First — For  a  first  defense: 

That  he  never  committed  adultery  with  the  person 
named  in  said  complaint,  or  with  any  other  person,  at 
any  time  or  place,  or  at  all. 

Second — For  a  second  defense,  and  a  counter  claim,  the 
defendant  alleges: 

\Allege  acts  of  adultery  as  in  Form  No.  497.] 

Wherefore  the  defendant  demands  judgment,    etc. 
[as  in  that  form.~\ 

1.  Inhabitancy. — An  answer  setting  up  plaintiff's  adultery  merely 
as  a  defense  need  not  allege  the  inhabitancy  of  the  parties,  or  either 
of  them,  at  the  time  of  the  offense,  as  is  necessary  in  a  complaint. 
(Leseuer  v.  Leseuer,   21   Barb.   330.)     But  that  the  offense  was  com- 
mitted without  the  defendant's  procurement,  connivance,  privity,  or 
consent,  are  essential  in  such  an  answer.     Morrell  v.  Morrell,  3  Barb. 
236;  Anomymous,   17  Abb.  Pr.  48;  B.  v.  B.,  n  N.Y.  Leg.  Obs.  350. 

2.  Insanity  of  Plaintiff? — In   an   action   for   divorce   on   the 
ground  of  the  nullity  of  the  marriage,  the  defendant  cannot  have  leave 
to  allege,  by  way  of  amendment,  that  plaintiff  was  insane  at  the  com- 
mencement of  the  action,  for  this  is  not  an  issuable  fact.     Appleton  v. 
Warner,  51  Barb.  270. 

3.  Limitation. — In  an  action  for  a  divorce,  the  physical  incapa- 
city of  the  plaintiff  to  enter  into  the  marriage  relation,  is  not,  after  two 


954  FORMS    OF    ANSWERS. 

years  from  the  date  of  the  marriage,  a  defense.  (Griffin  v.  Griffin,  23 
How.  Pr.  183.)  This  objection  can  only  be  taken  by  answer,  and  is 
applicable  to  actions  for  divorce.  (Bihin  v.  Bihin,  17  Abb.  Pr.  19.) 
So,  where  a  complaint  averred  acts  of  cruelty  committed  more  than 
ten  years  before,  and  the  defense  was  not  interposed  in  the  answer, 
evidence  of  such  cruelty  was  admissible.  Id. 

4.  Marriage  must   be   Denied. — If    the     complaint  in  an 
action  to  obtain  a  divorce  avers  the  marriage  of  the  plaintiff  and  de- 
fendant, and  the  answer  does  not  deny  the  averment,  it  is  an  admission 
of  the  fact  for  the  purposes  of  the  trial,  and  the  marriage  need  not  be 
proved.     Fox  v.  Fox,  25  Cal.  587. 

5.  Recrimination. — Adultery  committed    by  the  plaintiff  is  a 
perfect  defense  to  an  action  for  an  absolute  divorce,  and  is  also  a 
ground  for  affirmative  relief  in  the  same  action.     (Anon.,  17  Abb.  Pr. 
48;  B.  v.  B.,  N.Y.  Leg.  Obs.  350.)     The  doctrine  of  recrimination,  or 
compensatio  criminum,  applicable  in  suits  for  divorce,  and  the  several 
offenses  which,  by  the  Statute,  constitute  grounds  of  divorce,  are  plead- 
able  in  bar  to  such  suits,  the  one  to  the  other,  within  the  principle  of 
the  doctrine.     (Conant  v.  Conant,    to  Cal.  249;    Leseuer  v.  Leseuer, 
31  Barb.  330.)    To  be  an  absolute  bar,  the  conduct  of  the  plaintiff 
must  be  such  as  to  constitute  a  proper  basis  for  judicial  decree  against 
her,  had  suit  been  instituted  by  the  defendant.     (Conant  v.  Conant,  10 
Cal.  249.)     In  a  husband's  suit  for  divorce  for  the  wife's  adultery,  his 
adultery  cannot  be  set  up  under  the  Code  of  New  York  as  a  counter 
claim,  and  if  proved,  will  not  entitle  her  to  a  divorce.     R.F.  H.  v .  S. 
H.,  40  Barb.  9;  see,  however,  Anon.,  17  Abb.  Pr.  48. 

6.  Residence. — In  an  application  by  the  wife  for  a  divorce,  on 
the  ground  of  the  willful  neglect  of  her  husband,  and  his  failure  to 
provide  her  with  the  necessaries  of  life  for  the  period  of  three  years, 
the  residence  of  the  husband  with  the  wife  within  the  three  years  is  no 
answer  to  the  application,  where  it  appears  that  they  were  not  living 
together  at  the  commencement  of  the  suit.     Washburn  v.  Washburn, 
9  Cal.  475. 


FOR     DIVORCE.  955 

No.  785. 

iii.      Condonation. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  after  the  times  mentioned  in  the  complaint, 
and  before  this  action,  the  plaintiff  being  informed,  as  to 
the  matters  therein  alleged,  freely  condoned  said  alleg- 
ed adultery,  and  forgave  the  defendant  thereof  [and 
freely  cohabited  with  him]. 

II.  That  ever  since  such  condonation  the  defendant 
has  been  a  faithful   husband  to  the  plaintiff,  and  has 
constantly  treated  her  with  conjugal  kindness. 

7.  Must  be  Specially  Pleaded. — Condonation  must  be 
specially  pleaded.  (Smith  v.  Smith,  4  Paige,  432;  Morrell  v.  Morrell, 
3  Barb.  236.)  This  defense  may  be  joined  with  a  denial  of  the 
adultery  charged,  and  also  with  a  defense  charging  the  plaintiff  with 
adultery  as  a  bar.  Smith  v.  Smith,  4  Paige,  432;  Wood  v.  Wood,  2 
Id.  108;  Hopper  v.  Hopper,  u  Id.  46. 


CHAPTER  IV. 

FOR    FRAUD. 

No.  786. 

i.     Denial  of  Fraud. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies: 

That  he  obtained  the  said  deed  from  the  plaintiff  by 
fraud  or  misrepresentation  [deny  specific  acts  alleged~\. 


956  FORMS    OF    ANSWERS. 

No.  787. 

ii.     Denial  of  Mistake. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies: 

That  there  are  errors  or  mistakes  in  the  stating  of 
the  said  account,  as  alleged,  or  at  all,  but  that  the 
account  stated  which  is  mentioned  in  the  complaint,  is 
true  and  just. 


CHAPTER  V. 

QUO    WARRANTO. 

No.  788. 

i.     General  Denials. 


[TITLE.] 


The  defendant  answers  to  the  complaint,  and  denies 
generally  and  specifically  each  and  every  allegation  in  the 
complaint  contained. 


1.  Right  of  Office. — A  plea  to  a  quo  warrranlo,  that  the  defend- 
ants have  a  right  to  exercise  the  franchise,  accompanied  by  a  negation 
of  the  allegations  of  the  writ,  is  not  a  plea  of  non  usurpavit,  or  a  dis- 
claimer, but   is  a  valid   plea.      (Commonwealth  v.  Cross  Cut   R.R., 
53  Penn.  62.)     The  defendant  in  an  action  to  try  the  right  to  an  office 
may  set  forth  in  his  answer  more  than  one  defense.     People  v.  Strat- 
ton,  28  Cal.  382. 

2.  Ineligibility  no  Defense. — In  a  proceeding  to  contest  the 
election  of  defendant  as  District  Judge,  the  ineligibility  of  the  candidate 
receiving  the  highest  number  of  votes,  the  defendant  being  next  on  the 
list,  is  no  defense;  because  this  matter,  if  true,  could  not  protect  the 


IN     QUO     WARRANTO.  957 

incumbent  from  the  consequences  of  an  unauthorized  possession  of  the 
office.  (Saunders  v.  Haynes,  13  Cal.  145.)  The  fact  that  the  candi- 
date receiving  the  highest  number  of  votes  at  an  election  by  the  people 
is  ineligible  does  not  give  the  office  to  the  next  highest  on  the  list.  Id. 


CHAPTER  VI. 

SPECIFIC    PERFORMANCE    OF    CONTRACT. 

No.  789. 

i.    Denials. 
[TITLE.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

I.  That  he  did  not  contract  and  agree  with  the  said 
plaintiff,   in  manner  or  form  as  alleged  in  the  complaint, 
or  in  any  manner  or  form,  or  at  all. 

II.  That  the  said  plaintiff  did  not  pay  to  the  said  de- 
fendant the  said  sum  of dollars,   in  manner 

and  form  as  he  alleges,  or  at  all. 

III.  That  the  said  plaintiff  did  not  tender  the  said 

sum  of dollars  to  the  defendant,  at  the  time 

alleged,  or  at  any  time. 

IV.  That  said  plaintiff  did  not  put  said  defendant 
into  the  possession   of  the  said  premises,  at  the  time 
stated,  or  at  any  time,  or  in  any  manner. 

V.  That  the  said  plaintiff  was  not  seized  in  fee  of 
the  said  premises,  and  could  not  make  to  the  said  de- 
fendant a  good  and  sufficient  title  thereto,  as  by  his 
said  contract  he  was  bound  to  do,  but  on  the  contrary 
\state  inciLm.br ances — this  answer  like  all  answers  must 
be  made  according  to  the  facts  of  each  particular  case.~\ 


958  FORMS    OF    ANSWERS. 

No.  790. 

ii.   Dental  of  Delivery  of  Possession. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  did  not  give  possession  of  the  said 
premises  to  the  defendant  at  the  time  stated,  or  at  any 
time. 

JVo.  791. 

iii.    Denial  of  Readiness  to  Convey. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  was  not  ready  or  willing  to  convey 
the  premises,  as  alleged,  or  to  convey  them  at  all. 

JVo.  792. 

iv.    Performance. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  he  duly  performed  said  contract  upon  his 
part,  in  all  things. 

II.  \_State  facts  showing  performance^ 


FOR    SPECIFIC    PERFORMANCE.  959 

Wo.  793. 

v.    Denial  of  Part  Performance. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  the  said  A.  B.  did  not  take  possession  of  the 
said  premises,  or  do  the  said  acts,  or  make  the  said  im- 
provements thereon,  alleged,  nor  has  he  in  any  part  per- 
formed the  alleged  contract. 

JVo.  794. 

vi.   A  Demand  Before  or  After  the  Plaintiff's  Tender. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

I.  That  before  the  making  of  the  tender  alleged,  and 

on  the  ....  day  of ,   1 8 .  . ,  at ,  the 

defendant  requested  the  plaintiff  to  pay  him  said  sum. 

II.  That  the  plaintiff  then  and  ever  since  refused  to 
pay  the  same. 

1.  Insurance  Policy. — If  on  a  bill  in  equity  for  specific  per- 
formance of  a  contract,  for  a  policy  of  insurance,  the  answer  admit  that 
a  proposal  for  acceptance  was  made  and  accepted,  but  adds  that  no 
contract  was  made,  the  Court  will  not  intend  that  this  denial  includes 
any  new  matter  of  fact,  but  will  treat  it  as  only  containing  the  respond- 
ent's view  of  the  legal  consequence  of  the  facts  admitted.     Union  Mut. 
Ins.  Co.  v.  Commercial  Mutual  Ins.  Co.,  2  Curt.  C.  Ct.  524;,S.C.,  8 
Law  Rep.  (N.S.)  610. 

2.  Statute  of  Frauds. — In  order  that  a  bill  for  specific  per- 
formance may  be  taken  advantage  of  under  the  plea  of  the  Statute  of 
Frauds,  it  must  not  only  show  a  want  of  agreement,   conformable  to 
the  Statute  of  Frauds,  but  must  also  omit  to  make  any  allegations  of 


960  FORMS    OF    ANSWERS. 

part  performance.  (Field  v.  Hutchinson,  i  Beav.  599;  S.C.,  3  Jur. 
792;  Child  v.  Godolphin,  i  Dick.  39.)  Where  the  answer  admits  an 
agreement,  the  defendant  must  plead  the  Statute,  or  he  is  taken  to  have 
admitted  the  agreement,  which  is  either  good  under  the  Statute,  or  on 
some  other  ground  binding  upon  him.  (Cruyston  v.  Banes,  Prec.  Ch, 
208;  Symondson  v,  Tweed,  Id.  374.)  And  notwithstanding  his  ad- 
mission, the  defendant  is  entitled  to  the  full  benefit  of  the  Statute.  (Cooth 
v.  Jackson,  6  Ves.  12;  Moore  v.  Edwards,  4  Ves.  23;  Rowe  v.  Teed, 
15  Ves.  375;  Blagden  v.  Bredbear,  12  Ves.  466;  see,  contra,  Mussell  v. 
Cooke,  Prec.  Ch.  533.)  But  the  answer,  with  the  admission,  must  be 
to  the  original  bill.  (Spurrer  v.  Fitzgerald,  6  Ves.  548;  Beatson  v. 
Nicholson,  6  Jur.  621.)  And  the  answer  must  distinctly  claim  the 
benefit  of  the  Statute.  Skinner  v.  McDowall,  2  DeG.  &  Sm.  265. 

3.  Re-Conveyance  of  property. — If  the  grantee  of  land  agrees 
by  parol  with  the  grantor  that  he  may  keep  the  land  and  work  it  one 
year,  and  at  the  end  of  the  year  make  his  election  whether  he  will 
keep  it  and  pay  the  purchase-money,  or  restore  it  to  the  grantor,  the 
grantee  is  in  time  to  avoid  payment  of  the  purchase-money,  if  on  the 
first  day  after  the  end  of  the  year,  he  notifies  the  grantor  of  his  election, 
and  tenders  him  or  his  agent  a  deed  of  the  property.     Rhine  v.  Ellen, 
36  Cal.  362. 

No.  795. 

vii.    Rescission  of  Contract. 
[TITLE.] 

The  defendant  answers  to  the  complaint: 

That  after  the  contract  alleged  in  the  complaint,  and 
before  any  breach  thereof,  it  was  agreed  by  and  between 
the  plaintiff  and  the  defendant  that  the  said  contract 
should  be  waived,  abandoned,  and  rescinded;  and  they 
then  waived,  abandoned,  and  rescinded  the  same  ac- 
cordingly. 

4.  Form  of  Averment. — If  the  only  materiality  of  the  date  is 
that  it  was  after  another  event,  this  mode  of  stating  it  is  sufficient. 
Kellogg  v.  Baker,  15  Abb.  Pr.  286;  see,  also,  Bullen  &  L.  F.  395. 


ANSWERS — SUBDIVISION  EIGHTH. 

In  Statutory  Actions. 


CHAPTER   I. 

FOR    FORCIBLE    ENTRY    AND    UNLAWFUL   DETAINER. 

JVo.  796. 

i.    For  Forcible  Entry  and  Detainer.  . 

[TITLE.] 

The  defendant  answers  to  the  complaint,  and  denies: 

I.  That  plaintiff  was,  at  the  time  stated,  or  at  any 
time,  in  the  actual  or  peaceable  or  exclusive  possession 
of  the  property  described  in  the  complaint,  or  any  part 
thereof. 

II.  Denies  that  defendant  broke  into  the  premises 
of  the  plaintiff,  as  alleged,  or  in  any  manner,  or  at  all. 

III.  Denies  that  plaintiff  suffered  any  damage  by 
such  alleged  breaking,  or  in  any  manner,  or  by  any 
means,  either   as   alleged  in  the  complaint   or  at  all. 
[  Traverse  the  allegations  of  the  complaint  specially^ 


1.     Demand. — A  demand  for  the  surrender  of  the  possession,  and 
a  refusal'  for  the  period  of  five  days,  are  essential  in  order  to  constitute 

61 


962  FORMS    OF     ANSWERS. 

a  constructive  forcible  detainer,  defined  by  the  third  section  of  the  act. 
Brawley  v.  Risdon  Iron  Works,  Cal.  Sup.  Ci.,  Oct.  T.,  1869. 

2.  Demurrer  and  Answer. — It  is  provided  in  Sections  42  and 
67  of  the  California  Practice  Act,  that  a  defendant  may  demur  or  answer, 
or  do  both,  and  that  if  he  demurs  only,  and  his  demurrer  is  overruled, 
the  Court  may  allow  him  to  answer,  imposing  terms  in  its  discretion. 
The  same  rule  applies  to  actions  of  forcible  entry  and  detainer.     Mau- 
mus  v.  Hamblon,  Cal.  Sup.  Ct.,  Jul.  T.,  1867,  not  reported. 

3.  Easement. — In  forcible  entry  upon  mining  land,  an  answer 
that  the  defendants  entered  as  the  servants  of  a  specified  railroad  com- 
pany, which  had  legally  appropriated  the  injured  property  as  the  line 
of  its  road,  would  justify  the  entry  and  bar  the  suit.     Green  v.  Boody, 
21  Ind.  10. 

4.  Entry  under  Law. — The  defendant  may  show  that  the  lands 
described  in  the  complaint  are  public  lands  of  the  United  States,  and 
that  he  entered  on  a  portion  thereof,  specifically  describing  the  part 
entered  on  under  and  by  virtue  of  the  Act  of  Legislature  prescribing 
the  mode  of  maintaining  possessory  actions  on  public  lands,  and  that 
the  lands  so  entered  on  are  lands  to  which  the  plaintiff  has  no  right  of 
property  or  possession,  and  no  title  to,  or  interest  therein,  etc.     Buel  v. 
Frazier,  Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

5.  Eviction. — In   an   action   by  a  landlord   against  his   tenant, 
under  the  thirteenth  section  of  Forcible  Entry  and  Unlawful  Detainer 
Act,  the  latter  may  defend   by  showing  an  eviction  under  an  adverse 
title  in  a  judicial  proceeding,  of  which  proper  notice  was  given  to  the 
landlord.     (Wheelock  v.  Warschauer,   21    Cal.  309.)     Such  a  defense 
does  not  involve  any  question  of  title,  the  effect  of  an  eviction  being 
to  dispossess  the  landlord  as  well  as  the  tenant,  and  to  relieve  the 
latter  from  the  obligation  of  his  tenancy.      (Id.)      The  rule  which 
estops  a  tenant  from  disputing  his  landlord's  title  does  not  prevent  him 
from  showing  that  the  tenancy  has  been  determined,  and  he  may  treat 
an  eviction  with  notice,  by  one  having  an  adverse  title,  as  a  termina- 
tion of  the  tenancy,  and  thus  resist  any  claim  by  the  landlord,  either 
for  rent  or  possession.     (Id.)     The  notice  by  a  tenant  to  his  landlord 
of  proceedings  to  evict  him  may  be  oral.     (Id.)    An  eviction  of  a 
tenant  by  title,  both  legal  and  paramount  to  that  of  the  landlord,  must 
of  necessity  determine  the  tenancy,  and  when  the  title  of  the  landlord  is  set 
up  in  defense  of  the  action,  and  the  landlord  appears  and  defends  the  action 


FOR    FORCIBLE    ENTRY,    ETC.  963 

at  the  request  of  the  tenant,  and  in  his  name,  he  cannot  be  heard  to 
say  in  a  contest  with  the  tenant  that  the  tenant  was  not  evicted  by  para- 
mount title.  Wheelock  v.  Warshauer,  34  Cal.  265. 

6.  Evidence. — Where  the  plaintiff  in  forcible  entry  and  detainer 
is  forcibly  ousted  by  several  persons,  and  the  defendant  claims  that, 
although   present,    he   took   no   part   in   the  expression,  ne  should  be 
allowed  to  cross  examine  witnesses  who  testify  to  seeing  weapons,  as  to 
whose  hands  they  were  in.     Steinback  v.  Krone,  36  Cal.  303. 

7.  General  Denial. — Where  in  such  case  the  complaint  verified 
alleges  such  demand,  and  the  answer  verified,  instead  of  specifically 
denying  the  allegation,  denies  generally  "  each  and  every  allegation  " 
in  the  complaint:     Held,  that  this  general  denial  put  plaintiff  on  proof 
of  demand,  and  of  everything  necessary  to  maintain  the  action.   (Sulli- 
van v.  Car}',  17  Cal.  80.)     A  general  denial  is  no  longer  sufficient.     In 
an  action  of  forcible  entry  and  detainer,  all  matters  of  legal  excuse, 
justification,  or  avoidance,  can  be  given  in  evidence  by  the  defend- 
ant,   under   a   general   denial   of  the   allegations   of  the   complaint. 
Watson  v,  Whitney,    23    Cal.  375;   but  see   More   v.  Del   Valle,    28 
Cal.  172. 

8.  Insufficient    Defense. — Proof  of  prior   possession  of  the 
premises  in  controversy  does  not  constitute  a  defense  to  this   action. 
(Brown  v.  Perry,  Cal.  Sup.  C/.,fan.  T.,  1870.)     The  denial  that  the 
plaintiff  owned  the  buildings  on  the  premises  in  controversy  does  not 
raise   an   issue  that   can   be   tried   in  an  action  of  forcible  entry  and 
detainer.    So,  new  matter  pleaded  by  defendant  in  respect  to  the  lease 
of  the   premises   to   the   plaintiff,  its   expiration,  and   the  subsequent 
forcible  and  fraudulent  entry  and  detainer  by  the  plaintiff,  his  attempt 
to  place  others  in  possession,  and  the  claim  of  the  defendant  against 
the  plaintiff  for  the  rent  of  the  premises,  do  not  constitute  a  defense  to 
the  action.     A  set-off  is  not  admissible  in  actions  of  this  class,  and  it 
makes  no  difference  whether  it  is  a  demand  for  money  or  a  previous 
forcible  entry  of  the  plaintiff.     (Warburton  v.  Doble,  Cal.  Sup.  Ct., 
Oct.  T.,   1869.)     Proof  of  prior  possession  of  the  premises  in  contro- 
versy, in  an  action  of  forcible  entry  and  detainer,  does  not  constitute  a 
defense  to  the  action.     Brown  v.  Perry,  Cal.  Sup.  Ct.,  Jan.  T.,  1870. 

9.  Leave  and  License. — An  agreement  made  by  the  landlord 
with  the  tenant,  after  the  expiration  of  the  lease,  that  the  tenant  shall 


964  FORMS    OF    ANSWERS. 

have  possession  of  the  premises  one  year  longer,  paying  therefor  a  stipu- 
lated rent,  to  be  paid  if  the  land  is  included  in  a  certain  survey,  vests 
in  the  tenant  the  present  right  to  possess  the  lands  until  the  expiration 
•  of  the  agreement,  and,  if  pleaded,  is  admissible  in  evidence  as  a  defense 
to  an  action  for  holding  over,  brought  before  the  expiration  of  the 
time  specified  in  the  agreement.  (Wheelock  v.  Warschauer,  34  Cal. 
265;  Uridias  v.  Morrell,  25  Cal.  35.)  li  seems  that  evidence  showing 
the  acquiesence  of  the  plaintiff  in  the  defendant's  acts  is  admissible 
under. an  answer  denying  the  allegation  that  the  acts  were  done  without 
consent  of  the  plaintiff,  and  by  force,  etc.;  but  if  not,  the  objection  must 
be  taken  at  the  trial,  and  is  not  available  on  appeal.  Rowan  v.  Kelsey, 
2  Keyes,  594. 

10.  Right  of  Possession. — If  the  party  guilty  of  a  forcible  entry 
has  any  title  or  right  of  possession,  his  title  or  right  of  possession  can- 
not be  tried  in  an  action  of  forcible  entry  and  detainer.     He  must  first 
deliver  up  the  possession  forcibly  acquired,  and  then  he  may  litigate 
his  title  or  right  to  possession  in  a  proper  action.     (Mitchell  v.  Davis, 
23  Cal.  381.)     If  D.  and  H.  are  in  the  peaceable  possession  of  a  lot  of 
land,  and  S.  and  S.,  accompanied  by  others — their  employees — forcibly 
evict  them  therefrom  and  take  possession,  and  then  lease  the  lot  to  R., 
who  enters  into  peaceable  possession,  and  five  days  afterwards  D.  and 
H.,  with  others,  forcibly  dispossess  R.   and  take  possession,   and  R. 
brings  an  action  for  forcible  entry  against  them,  D.  and  H.  cannot  in- 
troduce evidence  of  their  prior  eviction  by  S.  and  S.  in  defense.     Ross 
v.  Duane,  27  Cal.  568. 

11.  Street  Assessments. — A  denial  in  the  answer  that  there  is 
any  such  street  as  A.  Street,  irr  the  said  City,  and  then  on  the  assumption 
that  there  is  no  such  street,  a  denial  of  the  digging  up  of  the  earth  on 
said  A.  Street,  are  evasive  and  not  direct  denials.     Fuhn  v.  Webber, 
Cal.  Sup.  Ct.,  Oct.  T.,  1869. 

12.  Sufficient  Answer. — An  answer  specifically  denying  each 
allegation  of  the  complaint,  and  affirmatively  alleging  that  the  lands 
described  in  the  complaint  are  public  lands  of  the  United  States,  and 
that  defendants  entered  thereon  under  and  by  virtue  of  an  Act  of  the 
Legislature  of  the  State,  prescribing  the  mode  of  maintaining  possessory 
actions,  and  that  the  lands  so  entered  upon  are  lands  to  which  the 
plaintiff  has  no  right  of  property  or  possession,  ?  nd  no  title  or  interest 
therein,  etc.,  was  held  sufficient  in  Buel  v.  Frazier,  Cal.  Sup.  Ct.,  Oct. 
7!,   1869, 


FOR    FORCIBLE     ENTRY,    ETC.  935 

13.  Title  Terminated. — A  tenant  may  show  that  his  landlord's 
title  has  terminated,  or  that  his  attornment  was  made  under  mistake  of 
facts,  or  fraud.     McDewitt  v.  Sullivan,  8  Cal.  592;  Tewksb'ury  v.  Ma- 
graff,  33  Cal.  327. 

14.  Answers  in  Tax  Suits. — Under  the  Statute  of  1863,  which 
provides  what  a  defendant  may  answer  in  a  suit  to  recover  a  tax,  an 
answer  which  avers  that  the  tax  was  fraudulently  levied  for  an  amount 
in  excess  of  that  authorized  by  law,  is  good.     (People  v.  Nelson,  36 
Cal.  375.)     The  general  statute  in  relation  to  filing  answers  in  cases 
for  the  collection  of  taxes  applies  to  suits  for  the  collection  of  taxes 
levied  by  school  districts.     Id. 

15.  Claim  to,  and  Possession  of<— If  a  complaint  in  an  action 
to  recover  judgment  for  taxes  avers  that  the  tax  is  an  assessment  of  de- 
fendants' "claim  to  and  possession  of"  lands,  an  answer  setting  up  as 
new  matter  that  the  lands  are  public  lands  of  the  United  States  con- 
tains no  defense.     People  v.  Frisbie,  31  Cal.  146. 

16.  Transfer  of  Cause. — Where  an  action  to  recover  a  personal 
judgment  for  a  tax,  commenced  in  a  justice's  court,  is  transferred  to  a 
district   court,,  an  amended   complaint  may  he   filed  in   the  district 
Court  to  enforce  a  lien  on  real  estate  for  the  tax.     People  v.  Nelson, 
36  Cal.  375. 


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